Can you be prosecuted for speaking your mind? | Civics Project explainer
Q. Can someone be prosecuted for what they say?
A. The Bill of Rights in the United States Constitution provides limitations on the government’s ability to restrict individual liberties in certain areas. The 1st Amendment reads in part that, “Congress can make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . . .” This is a fundamental right intended to allow the free exchange of ideas, even when those ideas are critical of the government or our elected leaders.
As I wrote in a previous column, lying itself can be a form of protected speech. Free debates can include exaggerations and hyperbole and if the government could prohibit those then it might chill the free exchange of ideas as people would be fearful of being wrong. The U.S. Supreme Court in New York Times v. Sullivan (1964) wrote, “That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the "breathing space" that they "need . . . to survive.”
However, certain categories of speech have limited or no protection. Speech that incites imminent lawless action does not receive protection under the Constitution (and is at the heart of some charges filed recently against former President Donald Trump). Though advocacy for more abstract and less immediate illegal behavior might have some protection. Speech which is integral to criminal conduct or is part of the crime is not protected. For example, there are crimes, such as conspiracy, in which speech is often clearly part of the crime. In addition, obscenity and fighting words are also types of speech that government can and does either limit or prohibit.
The Supreme Court has largely rejected laws that restrict, or limit speech based on the nature of the content of the speech. However, that presumption of unconstitutionality can be overcome if the government is able to show that the limitation was narrowly tailored to address a compelling state interest. For example, criminal solicitation where one uses words to induce an illegal act can be prohibited under the law.
Earlier this year, the U.S. Supreme Court in United States v. Hansen (2023) ruled that a federal statute that made it a criminal offense to encouraging or inducing an alien “to come to, enter, or reside in the United States” was not in violation of the Free Speech Clause of the First Amendment. Interestingly, the Court noted that there does not have to be a physical action to violate the statute, that the words used to encourage or induce, would be enough.
The challenge for courts and legislatures has been to protect the free exchange of ideas while giving the government the space to prohibit speech which is part of criminal conduct. At times that line can be difficult to draw and the courts are faced with trying to balance the right to speak with the police powers of the state. Sometimes it is just talk, but other times, words can get you charged with a crime.
Kevin Wagner is a noted constitutional scholar and political science professor at Florida Atlantic University. The answers provided do not necessarily represent the views of the university. If you have a question about how American government and politics work, email him at kwagne15@fau.edu or reach him on Twitter @kevinwagnerphd.
This article originally appeared on Palm Beach Post: Bill of Rights, US Constitution limit prosecution for free speech
