The Internet is often a chaotic and relatively unregulated public sphere, but this doesn’t necessarily mean that you can say or post anything you want without consequences. Although our public officials have been debating the extent to which the government can regulate speech and expression online for years, there remains a lot of vagueness surrounding First Amendment protections online, particularly when it comes to social media.
There have been multiple legal cases involving social media posts however, so at least there are judicial precedents from which we can reasonably determine what speech is protected by the First Amendment and what speech would be considered illegal. Here are a few situations in which the right to freedom of expression isn’t as absolute as you might think:
Violating the Terms & Conditions for Users
People often forget that the First Amendment only protects individuals against government censorship or punishment of their speech. This does not mean that Facebook, Twitter, Youtube, Instagram or other social sites are required by law to allow any and all expressions by users on their platforms. By agreeing to the site’s terms and conditions during the sign-up process, users are consenting to abide by each platform’s unique rules and if someone is banned for violating these rules, then that doesn’t necessarily constitute a First Amendment violation.
Furthermore while these social platforms are regulated by the Federal Communications Commission, the current regulations are woefully out-of-date. Perhaps some of the terms and conditions are unfair to users, but until the FCC re-examines its own regulations for social networking sites, the issue of possible First Amendment rights violations will remain up for debate.
Did you know that people have been arrested for what they posted on social media? Regardless of whether you’re serious or joking, law enforcement generally treats online threats similarly to verbal threats uttered offline and even threatening emojis can be used as warrants for arrest. Social media users also have been arrested for admitting to hit-and-runs in posts on their personal profiles, as well as driving under the influence of alcohol or drugs.
If you think it’s just basic common sense to know what to post and what not to post on social media, then you might be surprised to learn that one teenager took a selfie with the corpse of a friend he had killed and posted it on SnapChat. Obviously this is an extreme example, but other, lesser criminal offenses brought to light by social media demonstrate the necessity of developing our digital literacy skills and being mindful of legal constraints when posting on social media.
Fired Because of a Social Media Post
As noted previously, the First Amendment primarily protects individuals against the government infringing on their rights to freedom of speech and expression. Since private sector employers are exempt from this (and many employees nowadays are considered “at-will”), this means you could potentially get fired for what you post on social media, even if it’s not illegal.
There are plenty of stories about people who got fired over social media posts, and few wrongful termination lawsuits filed by these folks have been successful in court. This is why it’s important not just to understand what’s legal and illegal on social media, but also what your employer’s social media guidelines are.
In today’s hyper-polarized political climate, you oftentimes hear people bemoan what our Founding Fathers would think if they came back to see what had become of the U.S. two centuries later. However, a quick glimpse at history reveals several parallels between the late 1700s and the early 2000s of today:
Former acting director of the FBI recently revealed that he and Deputy Attorney General Rod J. Rosenstein considered invoking the 25th Amendment to remove Donald Trump from the office of the presidency on the basis of being “unable to discharge” his duties as Commander-in-Chief.
This revelation led Trump to respond on Twitter:
“The biggest abuse of power and corruption scandal in our history, and it’s much worse than we thought. Andrew McCabe (FBI) admitted to plotting a coup (government overthrow) when he was serving in the FBI, before he was fired for lying & leaking.” @seanhannity @FoxNews Treason!
Regardless of whether McCabe’s statement and previously intended-but-not-taken actions constitute treason, the Founding Fathers wouldn’t be too surprised by the latest political brawl because it happened so many times in the late 1700s and early 1800s. The original Alien and Sedition Acts themselves were so poorly phrased that almost anything could be labeled treasonous, and the Sedition Act of 1918 (which was really just an amendment to the Espionage Act) vaguely prevented any “disloyal, profane, scurrilous, or abusive language” towards the U.S. government, flag or armed forces.
As the Smithsonian points out, “fake news” rhetoric has been around since America was born – it just wasn’t called “fake news” back then. A notable example from the Founding Fathers’ time would be the Aurora, published and run by Benjamin Franklin’s grandson, Benjamin Bache. Based in Philadelphia, the Aurora frequently printed articles lambasting and harshly criticizing President Adams, who grew to dislike the notion of a free press, stating, “there has been more new error propagated by the press in the last ten years than in an hundred years before 1798.”
Nowadays, things haven’t improved much. We still have actual fake news spreading misinformation to millions of people online, as well as “fake news” rhetoric utilized by politicians to discredit news stories and/or media outlets publishing information that they, their parties and supporters dislike or disagree with. Fortunately, there are plenty of tools and organizations (like First Amendment Voice) to protect the public against waves of misinformation while simultaneously upholding our vital First Amendment rights to freedom of speech and freedom of the press.
In the 1700s and early 1800s, it wasn’t uncommon for wealthy political figures to fund (secretly or publicly) journalists and publications that supported their political views. For example, Thomas Jefferson was known to privately fund journalists like James Callender, who aggressively supported political agendas Jefferson believed in (anti-Federalist).
Nowadays, prominent, ultra-wealthy individuals like Amazon’s Jeff Bezos (owner of The Washington Post) and Roger Ailes (1940-2017; Chairman and CEO of Fox News) likely have considerable influence over the press, though media organizations strive to maintain objectivity in their reporting as much as possible.
All in all, you might be surprised to see just how similar our First Amendment-related concerns are to the concerns of our Founding Fathers’ generation, back when the First Amendment was first established. This doesn’t mean we should give up and assume we’re doomed to repeat history, of course. Visit our donations page to help us fight for all Americans’ First Amendment freedoms today.
When you think of the First Amendment, freedom of speech, freedom of religion and freedom of the press typically come to mind. By comparison, the freedoms to petition and peacefully assemble are frequently forgotten by American citizens asked about their First Amendment rights in surveys and informal polls. Why is that?
There is a long, complicated history behind our Constitutional right to peacefully assemble, but it’s not as well known as some of the other freedoms guaranteed by the First Amendment because this is something that may not directly affect us on a daily basis. While many people assume this simply refers to the unrestricted right to protest, the reality is actually much more complex than you might think.
As the Library of Congress points out, the government cannot prohibit its citizens from congregating in public spaces, whether that entails participation in protests and marches or attending public meetings. Over time, this right has bolstered public marches, rallies, and student protests.
Nowadays, the freedom to peacefully protest is closely intertwined with our rights to freedom of speech and even freedom of religion in some cases. For instance, citizens are able to collectively amplify their voices and potentially spark socio-political change in ways that simply wouldn’t be possible if we were forced to articulate our opinions and ideas in isolation from other people who may be receptive to them.
Of course, it’s worth noting that the right to peaceful assembly is not absolute, nor is it easy to interpret under the law. There have been several legal challenges related to the question of what constitutes a “peaceful” protest, and which types of assembly may be considered dangerous, threatening, or chaotic. This is why many protest organizers need to acquire permits before a protest may take place in public. That can help the local/state/federal government to adequately prepare for a larger-than-usual public presence and properly secure the area with law enforcement, in cases of conflict between protestors and counter-protestors.
Additionally, the government may limit when and where a protest or rally may be held for the purpose of minimizing disruptions to public life. For instance, a loud, chaotic protest that clogs the streets during rush hour in a large urban area may not meet the criteria for a “peaceful” form of assembly.
Although you may not think about your right to peaceful assembly as much as you’re aware of the freedoms to speak freely and practice any religion you choose, it’s nevertheless an important right that all Americans ought to remember when it comes to the First Amendment.
What’s the definition of religion? While your first response may be something like “a belief in a god,” the answer is much more complicated when it comes to freedom of religion protections and churches’ tax-exemption statuses in the U.S. In other words, the actual definition of religion (a system of faith and worship) is so broad that almost anything could technically be considered a “religion,” rather than limiting it to the major faith systems of Christianity, Islam, Judaism, Buddhism, etc.
Regardless of your own religious or nonreligious beliefs, have you ever wondered why churches receive tax-exemption status in the U.S. and what organizations qualify for it, per the IRS guidelines? Here’s a brief overview of the current interplay between religion and taxation in the United States:
Tax-Exemption for Religious Institutions
IRS regulations pertaining to churches and religious organizations fall under the umbrella of 501(c)(3). This means these groups are exempt from having to pay local, state and federal taxes, which could add $83.5 billion to government revenues in the U.S. if churches were required to pay taxes on donations and other forms of income.
Churches also do not have to file Form 990, which other charities are required to fill out to remain transparent about their donations and financial statements.
Pushing the Boundaries?
What is the bright line between a regular tax-exempt church and something that operates similarly to a church but doesn’t seem to be a traditional religious institution? For example, the First Church of Cannabis – which considers marijuana to be a sacrament that heals suffering and brings people closer together – was granted tax-exemption status by the IRS in 2015. Meanwhile the ever-controversial organization of Scientology is considered tax-exempt, though it has lost its exemption in the past and might lose it again in the future.
Then there’s the story of a Florida “church” called The Life Center that turned out to be a rowdy nightclub (which lost its local tax-exempt status but maintained its state tax-exemption for some time). With these major examples of non-traditional notions of what it means to be a religious organization, how does the IRS decide whether or not to grant tax-exemption without demonstrating bias in favor or against certain so-called religious groups?
Legitimacy Issues and the First Amendment
As Forbes pointed out, the IRS typically examines the following factors to decide if a church should be granted tax-exemption status:
“Distinct legal existence; Recognized creed and form of worship; Definite and distinct ecclesiastical government; Formal code of doctrine and discipline; Distinct religious history; Membership not associated with any other church or denomination; Organization of ordained ministers; Ordained ministers selected after completing prescribed study; Literature of its own; Established places of worship; Regular congregations; Regular religious services; Sunday schools for religious instruction of the young; and Schools for preparing its members.”
The problem here is that the Constitution’s freedom of religion guarantees in the First Amendment make it difficult for the government to classify some religious groups as legitimate while denying other groups’ legitimacy. Moving forward, what should the IRS do? Should they adhere to the First Amendment’s freedom of religion guarantees by approving tax exemptions for unusual organizations that claim to be religions? Or should they revoke tax-exemption status for all churches in the U.S. to improve fairness among all religious organizations?
Colin Kaepernick may have sparked the debate over professional athletes’ access to freedom of speech and expression protections, but controversies about athletes and First Amendment rights involve so much more than kneeling during the national anthem.
Whether you enjoy playing sports or watching sports, here’s a brief overview of the state of First Amendment rights for fans and players in the American sporting industry:
Major League Player Protests
As ESPN points out, there is no universal policy among major sports leagues when it comes to players’ conduct during the national anthem. While the new NFL policy that players and coaches must stand during the national anthem mirrors NBA and WNBA policies, the MLB and NCAA have no official policies on the matter. The NHL’s Player’s Association even went as far as explicitly confirming support for players who would like to engage in “peaceful protest” during the national anthem. Meanwhile, Major League Soccer reportedly “encourages” players to stand during the national anthem, but it does not require them to do so.
If the First Amendment primarily protects citizens against any wrongful infringement on their speech/expression by the government, should it also protect professional players that work for nongovernmental sports organizations? The debate will likely continue for many years to come.
Paid Sponsorships for College Athletic Departments
College sports are already under fire for not paying their players (beyond covering tuition/fees in most cases), while their events make millions of dollars thanks to these hard-working student-athletes. Another issue confronting college athletic departments these days is paid sponsorships, which involves corporations sponsoring college teams by offering funds, gear and other incentives in exchange for advertising opportunities.
Since public university athletic directors are technically government employees, this raises the issue of potential First Amendment violations when a director accepts some corporate sponsorships while rejecting others. Should athletic departments be able to freely deny certain corporate sponsorships and accept others, or does this represent a Constitutional violation? Experts are still divided, so this will also remain a hotly contested issue in the world of college sports for the indefinite future.
Fan Heckling = Protected Speech?
A relatively newer phenomenon related to the First Amendment and sporting events is fan heckling. In 2018, New York Giants fans were ousted and arrested for heckling, which led them to sue, claiming their First Amendment rights were violated.
In the international arena, fan heckling has typically resulted in monetary penalties for teams, such as FIFA fining Mexico in the 2018 World Cup after Mexico’s fans repeatedly hurled homophobic slurs at the goalie during their match against Germany. But when it comes to American sports – where legal jurisdiction is also more clear-cut than simply letting FIFA handle matters – should fans be penalized for heckling and poor conduct, or is this merely disrespectful behavior that should nevertheless be protected by the First Amendment?