Freedom of Speech: Protections and Limits

By Sosamma Samuel-Burnett, J.D.
Founder/President, G.L.O.B.A.L. Justice

Freedom of speech is a really tough thing. It requires us to provide enough bandwidth for those that we not only disagree with, but also those on the fringe who are outright offensive. However, public morality and conscience tell us that this freedom, like other freedoms, is not completely unfettered. There are contexts in which “freedom of speech” may not apply or at least not fully — especially when it touches on morality, privacy, or security. You can’t yell “fire” in a theater. You can’t hold a public protest on private property without permission. You can’t solicit people who wish not to be solicited. You can’t threaten someone. You can’t invade privacy. You can’t libel or slander. And you can’t be morally repugnant, at least not publicly. In the last category, that doesn’t mean that you have no right to say or express what you want, but it does limit the contexts in which you have that right.

The recent “free speech” issues raised by the Kathy Griffin image with a depiction of a severed head of Donald Trump, the recent offensive Facebook exchanges between students who were accepted and now rescinded admittance to Harvard, and the investigation of Reality Winner who apparently leaked NSA information present some particularly interesting examples of free
speech and its limits.

Although Kathy Griffin has created a reputation for rude and crude humor, she went too far in what she depicted in the above noted image for two reasons — she chose a particularly gruesome image that is morally repugnant, and she chose to make that depiction against the president. No matter how much one may dislike Trump or any other president, generally a depiction like that of a president would be investigated and, depending on context and degree of threat the individual, could even be arrested. But since she is a fairly well known comedian, an apology sufficed. But the issue here wasn’t whether she had a right to express herself in this way or not, but that what she chose to depict was outside the bounds of what is generally acceptable for the public or against a president.

The situation of the Harvard prospective students is a little different. The Harvard students chose to use a Facebook chat group. Certainly social media is not private, but an argument can be made that the chat group, if a closed group, could be considered semi-private in that it is not open to the public in general. However, it can, as in this case, be shared with others so it is not completely private. There is no question that what these students discussed in this chat context was also morally repugnant. But the issue is whether they had a privacy right in this context. I applaud Harvard for taking the proactive stance of rescinding their admission based on what was shared in the chat group. However, from a free speech standpoint, it is difficult to know whether the students speech (and viewpoints) expressed were considered private. The university has a right and a reason to recruit and accept the best students possible, both academically and for character. Once they found out about the students chat group, I can certainly understand why they would rescind for character. But whether that chat room was private is another question, and whether access to it intrudes on free speech is also in question