The issue of free speech has come up in the public consciousness as people with unpopular opinions gain more and more media attention. When pushback against an individual's speech results in that person being silenced in some way (e.g. banned from a social media website), it's not unusual for the individual to claim his or her First Amendment rights were violated and seek out legal remedies. The problem is that most people's understanding of the First Amendment is flawed, which can lead them to launch lawsuits that are doomed to fail. Here's what you need to know about First Amendment violations to help you make the best decision in your situation.
The Government Must Be Involved
Possibly the biggest reason why there is so much confusion about First Amendment rights is that many people conflate the spirit of free speech with the actual law. The spirit of free speech asserts that people have the right to voice their opinion about anything at any time, even if their opinions are unpopular (e.g., gay marriage should be banned) or could cause harm (e.g., promoting ethnic cleansing).
The problem is the actual law is limited in its scope. Specifically, the First Amendment only bars the government from enacting laws or taking actions that limit what citizens and the press can say. For instance, the president could not issue an executive order requiring everyone to only say positive things about him. That would impose on people's right to voice their opinions, whether they were positive, negative, or neutral.
It's important to understand the difference because the government must be involved in some way for a free-speech violation to occur that's legally actionable. The law does not prohibit private entities (e.g. corporations or individuals) from taking actions that may infringe upon your right and ability to voice an opinion.
For instance, it's perfectly within Twitter's right to deactivate your account for any reason, including not liking what you have to say. Since the site is privately owned, the company is not required to provide you with a platform to speak. The only way you could recover damages or losses you suffered because of the deactivation is if the company broke other laws when it took action (e.g. violated anti-discrimination laws).
Interestingly enough, any institution or company that accepts government funding is required to adhere to the First Amendment, regardless of how it may feel about the person speaking or the speech itself. A good example of this issue is UC Berkeley letting Milo Yiannopoulos speak on its campus. Many people were upset at the school for providing a platform to a person whom they felt espoused bigoted and harmful beliefs. However, UC Berkeley is a public institution, funded by the state and federal government. Thus, it is legally required to adhere to the First Amendment. Refusal to host the speaker could have made the school liable for damages.
Elements of a First Amendment Claim
To win a case involving a First-Amendment violation, you must prove several things are true:
- Your speech was protected. Some types of speech, such as threats and harassment, are not covered under the First Amendment.
- The government (or a government-funded entity) interfered with your right to speak, and/or
- You were subjected to an adverse action by the government (or a government-funded entity) in retaliation for your speech that would deter you from speaking again
- The action was motivated by your speech
- You suffered damages and losses as a result of the incident
All of these things have to be true if you hope to recover money for your losses. If your free speech rights were negatively impacted, but you didn't suffer any compensable damages as a result, the defendant may be found to have acted wrongly, but you probably won't get any money as a result.
Litigating a First Amendment case can be very challenging. It's essential you work with an attorney who can help you craft the best strategy for obtaining the outcome you want.
