Speech isn’t free when it’s a crime

When it comes to freedom of speech, we have a lot of latitude. We’ve all heard someone say, “It’s a free country! I can say anything I want!” But is that right? Can you literally say anything? Last week I started a series of posts on the First Amendment to the United States Constitution.

The text of the First Amendment to the US Constitution reads: “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.”
Many thanks to Indivisible Door County, WI.

The section of the First Amendment relevant to today’s post says, “Congress shall make no law . . . abridging the freedom of speech . . . .” That seems pretty straightforward, but there are wrinkles.

Protected speech has always had exceptions. Today I’d like to address the “criminal element.”

When speech is a crime

Let’s start with slander. Slanderers make false statements that defame and damage a person’s reputation. You’re not free to do that, because it’s just a wrong, unfair thing to do. But then come the questions: How can you prove it’s false? Is it still slander if your victim is famous?

Across the photos of two young men, headlines read, "Breaking News" and "Shocking Allegations Denied!"
Image courtesy of @CelebDirtyLaundry on Twitter.

What if you honestly thought it was true when you said it? If you’ve ever forwarded a shocking meme without checking to make sure its “facts” were accurate, you should fold up your righteous indignation, and stick it right back into the cabinet.

Related but different, perjury is a crime because it interferes with the rendering of justice. Doesn’t keep it from happening, but it’s not legal, either.

Perjury is the basest and meanest and most cowardly of crimes. What can it do? .Perjury can change the common air that we breathe into the axe of an executioner.
Perjury quote from Robert G. Ingersoll
Many thanks to Quotestats.

A particular kind of wrong

How about obscenity and child pornography? People immediately start arguing about “what is obscene?” “To whom?” “In what context?” The so-called “Miller test” defines three points by which to evaluate whether something is obscene, but it’s not perfect, either.

Child pornography, which is extremely destructive to its underage victims, is considered a sex crime—but people have tried to defend it as a First Amendment question.

No freedom for criminal conduct

This quote from Alan Greenspan says, “Corruption, embezzlement, fraud, these are all characteristics which exist everywhere. It is regrettably the way human nature functions, whether we like it or not. What successful economies do is to keep it at a minimum. No one has ever eliminated any of that stuff.”
Many thanks to AZ Quotes.

Speech integral to criminal conduct” is a broad category, it turns out. The formation of a more perfect union is never served by con artists swindling people, for instance. They have no First Amendment right to defraud someone.

Another prohibited category includes false advertising, which is a kind of swindling. There are a lot of people who think the “false advertising” test should include gaslighting in the political arena (“Pizzagate,” anyone?). So far, however drawing the line between opinion and falsehood or misleading representation has eluded many of us.

Against the backdrop of the tweet from “Carmen Katz” that started the rumor that turned into “Pizzagate,” a couple wearing T-shirts emblazoned, “PIZZAGATE IS REAL” and the business sign of the hapless Comet Ping Pong pizza shop are superimposed in a Sean McCabe illustration for Rolling Stone magazine.
Here’s an evocation of the “Pizzagate” fake news conspiracy (Thanks, Rolling Stone and illustrator Sean McCabe).

Inciting physical harm

Inciting others to commit violence is another kind of speech that’s not free, because it can lead to harm. For instance, inciting a mob to do violence can lead to people getting hurt or killed, property destroyed, etc.

Cars burn and streets are shrouded in smoke in the wake of a May, 2020 riot in Grand Rapids, MI, allegedly started by a woman who has now been charged.
The aftermath of a riot, allegedly incited 5/31/2020 by a Michigan woman, wasn’t pretty. (WMMT Channel 3).

Likewise, making false statements to set off panic (the infamous “falsely yelling ‘fire!’ in a crowded theater” scenario) is not protected. You can’t solicit someone to commit a crime (such as hiring a hit man to take out your inconvenient spouse).

Insidious falsehoods

Inconvenient though some might find it, the First Amendment won’t defend extortion or blackmail, either. Except, perhaps, when you’re a president extorting a foreign leader for political aid, and the Senate won’t impeach you?

Photos of U.S. President Donald J. Trump and Ukranian President Volodymyr Zelensky are superimposed over an image of the July 25, 2019 memorandum that documented what Trump called a “perfect phone call” in which Trump asked Zelensky to investigate potential rival Joe Biden in return for Trump’s releasing Congressionally-allocated military aid that Ukraine badly needed.
Trump, Zelensky, and the 7/25/2019 memo documenting the “perfect call.” (illustration courtesy of Rogue Rocket).

Hounding your boyfriend via text messages until he kills himself, as Michelle Carter learned, is also not protected. Indeed, true threats, harassment, stalking, and cyberbullying are all criminal behavior, although they can be difficult to prosecute.

False reports

For what seem like pretty obvious reasons, filing a false police report is also a crime. That’s what got Amy Cooper, currently the poster child for the “Karen” stereotype, in hot water with the law. Not for her racist rant, which is protected speech. That “only” got her internationally shamed, fired from her job, and her dog adoption rescinded.

For a while, a certain group of online gamers thought “swatting” was pretty funny. This is making calls to police departments to prank them into responding in force to a hapless victim’s address. Hilarious, right? Tyler Barriss thought so, too, until his false call got Andrew Finch, a Wichita man, killed. For this and other “swatting” calls, he’ll spend 20 years in a Federal prison.

Wichita, KS police work the crime scene at the unfortunate Andrew Finch’s house. Finch was the innocent target of a misdirected SWAT raid, killed when police responded to a prank call on 12/29/2018. The caller, Tyler Barris, is now serving a 20-year sentence in Federal prison for his “joke.”
Wichita Police work the crime scene at the Finch residence after a prank “swatting” call went horribly wrong. (Photo by Fernando Salazar/Wichita Eagle/AP, via the New York Times).

Speech is powerful. When used for peace and progress, art, or enlightenment, it can transform communities and uplift lives. When used for evil ends, it can harm, impoverish, or kill. It behooves us all to mind our tongues in certain important ways.

Next week we’ll look at freedom for less-than-popular forms of self-expression that are protected. Even though some people think they shouldn’t be.

If you have thoughts on the things I’ve written here, please let me know in the comments below!


Many thanks to Indivisible Door County, WI for the text of the First Amendment. The “Allegations Denied” image is from @CelebDirtyLaundry via Twitter. I appreciate Quotestats providing the Robert Green Ingersoll quote, and AZ Quotes for the Alan Greenspan quote. Deepest gratitude to Rolling Stone and illustrator Sean McCabe, for the “Pizzagate” illustration. The full illustration has been cropped in the image I used, but is shown in its entirety lower on the source-page. Many thanks to WMMT Channel 3 of Grand Rapids, MI, for the “aftermath of the riot” photo. I’m grateful to Rogue Rocket for the Trump/Zelensky illustration, and also deeply so to photographer Fernando Salazar, the Wichita Eagle, the AP and the New York Times for the photo of the scene outside Andrew Finch’s house the night he died. I appreciate you all!