Lots of speech is not covered by the Free Speech clause in the First Amendment. Defamation is an example of speech which is not allowed. Likewise for yelling “Fire” in a crowded theatre and speech that institutes a riot. Provocation is not protected by free speech. Obcenity is not protected. Fraud and deception can be crimes so they are off limits to First amendment protection.

If someone speaks when there is no audience there’s no need for First Amendment protection because no one is listening.

The laws protect people. Laws protect things too so far as patents and commerce but the First Amendment does not apply to things.

The First Amendment applies to speech including many expressions of ideas from people. But ‘things’ don’t speak so there no need to protect what things say. :—)

Lawyers will tell you, wrongly, that the Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A much-cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

The problem was the court believed McIntyre’s pamphlets were written anonymously because they were not signed. They overlooked the fact that McIntyre was distributing them. The court also began with the premise that anonymous speech where the speaker is unknown to be identical as identified speech where the speaker is known. That’s the same as saying good is the same as evil.

Anonymous speech may be correct or incorrect but knowing the author is part of how we evalaute information. 

The McIntyre case was about a law that required pamphlets to have the name and address of the person issuing the pamphlet. The law under review was Ohio Code § 3599.09(A), which forbade “the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature”. Campaigns come under more intense scrutiny because of the massive amount of corruption that occurs in a political campaign.

If a political campaign does not want to reveal who is behind the campaign, fine – but voters should reject the message. If the message violates a law, for example, defamation, there is no First Amendment protection. There’s a weird exception to that but it’s rather esoteric.

BTW, PA requires the name and address of the person or official responsible for the message. No Anonymous Campaign Literature in PA. It’s PA law even though it violates McIntire v Ohio and from personal experience PA judges will rule against Supreme Court decisions on the basis of that’s not PA law. Go figure. Corruption on the bench.

A big exception to free speech is the “Fighting words doctrine” even disorderly words, as well as profanity will have a difficult time in court for anyone foolish enough to believe profane speech is protected.

And minors are protected more than the free speech rights of people trying to corrupt them or to subject them to indecency. Often a gag order is placed on court materials which has the effect of preventing speech.

Free speech is a good rule to have and frequently the answer to free speech problems is not restrictions but more speech. The First Amendment however does has places where it does not apply. Don’t be tempted to test those limits. Remember that the internet is an advantage because people can speak freely without fear of government intervention but as the hacker who hacked into Sarah Palins e-mail found out, he should not have invaded her privacy and the First Amendment was no protection at all for his fraud so the FBI quickly identified and prosecuted him. He was sentenced to a year in a federal prison. He was the son of a State Representative. 

The Constitution does not mean we must be suckers nor that we are without means to respond to personal attacks. 




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