Question About Free Speech and Charlottesville.

[Initech]

So I've had a few conversations with people lately about the "free speech" activists in Charlottesville. So the thing is by law, these 'free speech" activists have a fundamental right guaranteed by the 1st amendment to say what they want to say. But corporations can dictate what they deem acceptable, is that correct? Like say for instance the Daily Stormer. Say I'm a private web hosting service. Now I could dictate that the Daily Stormer being on my network is detrimental to my company's terms of service agreement. But the government could not say that the Daily Stormer is not allowed on American network hosting services, is that correct? How does policing by private enterprise work vs. how the government polices and dictates speech? Like the American government could not make laws governing speech am I correct about that?

[Eko]

1. Free speech only applies to the government

restricting speech, nothing else.

[The Velveteen Ocelot]

2. Con Law 101: The First Amendment applies only to government action.

It says, specifically: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Bill of Rights, including the 1st Amendment, was made applicable to state governments by operation of the Fourteenth Amendment ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." ).

So what this means is that although a government entity, federal or state, can't suppress, restrict or punish anyone's speech, a private entity can. An employer can fire an employee because he identified himself on Facebook as a white supremacist, for example; the employer might not want such a person working for them because of a possible loss of business or workplace disruption. A social media provider can refuse to provide a platform for expressions it considers offensive. But the government can't tell private employers that they must fire people on account of their ideology, not can it require social media outlets to close the accounts or block the comments of such people. This would in effect make these private entities agents of the government in suppressing free speech, which would violate the First Amendment.

[KY_EnviroGuy]

3. But, you can be prosecuted for what you say, right?

The government can't stop you from saying anything you like, but in cases of inciting violence, insurrection, or suggesting something like assassination etc., you could be breaking the law, is that correct?

[The Velveteen Ocelot]

4. That depends.

Speech that just encourages violence is protected by the First Amendment unless the incitement is direct and immediate. The Supreme Court held in Brandenburg v. Ohio that the government can't punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." It is, however, a felony to threaten the president, former presidents and presidential candidates, and the statute is considered constitutional because the crime consists in the threat itself and the fact that serious threats against the president are disruptive to the president's ability to carry out his office. Also, "the person must intentionally make a threat in a context, and under such circumstances, that a reasonable person would foresee that the statement would be interpreted by persons hearing or reading it as a serious expression of an intention to harm the President." The statute does not penalize imagining, wishing, or hoping that the act of killing the President will be committed by someone else. Most states also have laws against making terroristic threats; these are not considered expressions of speech but criminal acts intended to frighten or harm a specific person.

[KY_EnviroGuy]

5. Thank You!!

Thanks so much for those clarifications, they really help us to understand. The words "incitement is direct and immediate" clears up a lot.

Don't many of the laws and court decisions go back to the days of telephone call threats? Do the same laws and rules apply to threats in writing, ie., by letter or email?

I hope everyone on DU can read your post!