The First Amendment Decoded: Free Speech in the Real World | More Human More Kind

Hi friends, welcome back to Beyond the Breath. I'm Heather Hester and I am so grateful you're here. I have a quick announcement before we get into today's episode. I am so excited to share that in the next few weeks I will be reintroducing this podcast under a new name, More Human More Kind. A lot has gone into this decision, which I will share with you over time, but the most important thing for you to know right now is that you will remain connected to the entire backlog of Just Breathe Parenting Your LGBTQ Teen episodes, which means you will not need to go searching for this podcast as long as you are subscribed to or follow the show. So your homework, or perhaps even right now, hit pause and then hit that subscribe or follow button so you don't miss any episodes. Today we're diving into part 2 of our 4-part series on the First Amendment, and this episode is all about the freedom of speech, what it protects, what it doesn't, and how we can think about our voices as powerful tools for compassion and connection. As always, this space is rooted in gentleness, curiosity, and truth. So let's get into it. So I first wanna start right at the source. What does the First Amendment say? And I brought this up last week in our episode 1 when we were talking about free press, but I want to say it again. The First Amendment says, quote, 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. This First Amendment is really 4 powerful freedoms or statements. One, 1. Freedom of religion and the separation of church and state. 2. Freedom of speech. 3. Free press. And 4. The right and freedom to peacefully protest the government. So again, last week we talked about the importance of a free press. Today we are looking specifically at free speech. Congress shall make no law Abridging the freedom of speech. That's it. One short line. But that one short line holds so much power. In practice, this means that the government at any level can't punish you or limit your right to express yourself, whether that's through speaking, writing, protesting, or even symbolic acts like wearing an armband or burning a flag. But, and this is so, so, so important, it doesn't mean you can say anything without consequences. Freedom of speech does not mean freedom from accountability, especially from employers, private companies, or your community. And it doesn't give protection for all types of speech. There are limits, and we're going to talk about this right now. So what's not protected? Let's talk about this first. First, there are categories of speech that the courts have ruled are not protected by the First Amendment. These include first and foremost, and we talked about this one a little bit last week, incitement to violence, like for instance, calling for harm or illegal action, especially in a way that's likely to happen. If you are curious to understand more, this was really clarified in the 1969 case Brandenburg versus Ohio. It has become ever more nuanced in recent years, and certain leaders have used dog whistles, or terms that seem innocuous but stand for something that only a certain group of people understand, and that's used to activate them in a negative way or to incite violence. Another category of speech that is not protected by the First Amendment are actual true threats, speech that seriously threatens another person's safety. That one's simple and to the point. The third is obscenity, and this one's tricky. It's been defined specifically through a case called Miller v. California, and I think this is the most direct one and easiest one to perhaps understand. Miller v. California was initiated in response to Marvin Miller's actions in 1971 when he conducted a mass mailing campaign advertising adult materials. So the Supreme Court ruled that obscene materials are not protected by the First Amendment. And then the court established a three-pronged standard to determine obscenity. Essentially, what this decision does is it grants the states greater authority to regulate obscene material, allowing them to base judgments on local community standards rather than a single national standard. The next category that is not protected by the First Amendment is defamation, like slander or libel. These can all harm a person's reputation through false statements. And then finally, perjury, blackmail, or fraud— speech that is used to commit a crime. So there are real limits to free speech, especially when harm or danger or falsehoods are involved. So what is protected then? Well, this is really, really hard because this gets into what if it's really ugly speech? What if it's really hurtful speech. Speech that is offensive, controversial, or even hateful is usually protected as long as it doesn't cross into violence or threats. So yes, obviously there's a fine nuanced line there, but that's really— this is really important to understand because this includes political speech, protest, satire, unpopular opinions, symbolic expression, like for instance kneeling during the national anthem or wearing protest clothing. Even hate speech, which is incredibly painful to witness or experience, is generally allowed unless it meets the criteria for violence or threat. Now, just because it's allowed doesn't mean we condone it. The First Amendment isn't about protecting comfortable speech. It's about preventing the government from deciding who gets to speak. So why does this all matter, especially for those of us who care about justice and kindness and connection? It matters because knowing how speech is protected helps us to be better advocates and better listeners and better responders. When we know what's allowed and we know what's harmful, that knowledge gives us a lot of clarity and power. We can use our voices to uplift, to defend, to inspire, while understanding the line between free speech and harmful speech. We can choose to respond instead of react, and we can teach others, especially our kids, that speech is both a right and a duty. A responsibility. So let's talk about how this has shown up in the world over the past decade or so. I'm sure right now, or even as I've been speaking, you've been thinking about maybe 1, 2, 3 things that you've either read in the news or have happened to you personally, or that you've just heard that have made you angry or sad or upset. So let's just talk about a couple of these and talk about why they are good or bad, why they are allowed or not allowed, why they would be considered free speech or not free speech. The first is when NFL player Colin Kaepernick took a knee during the national anthem to protest racial injustice. Remember that? It sparked absolute insanity. But from a constitutional perspective, it was protected symbolic speech. The government didn't and couldn't stop him, but he did get private backlash. There were team decisions that were not good, and those are very, very separate from First Amendment protections. What about when it comes to social media? Another common misconception when people are banned from social media platforms is that they often cry out free speech. They're upset about their free speech being infringed, but What they're not thinking about and what they're not realizing is that those are private companies. They set their own policies. The First Amendment applies to government censorship, not private moderation. This is why it was a big deal when Facebook recently changed its moderation standards. Even though it may feel like it, Facebook and X are not government platforms, so they can create whatever rules they wish, and we can choose how we respond. So while the First Amendment protects free speech from government interference, there are a few more very recent events that have raised concerns about potential overreach and the really delicate balance between security and civil liberties. So let's look at just a few examples here. The first, and I brought this one up last week because it has to do with press access, but I think it is worth noting again because this has continued to be something worth paying attention to. The Trump administration faced legal challenges after barring the AP, the Associated Press, They're journalists from White House events citing disagreements over terminology, specifically the AP's refusal to call the Gulf of Mexico the Gulf of America. A federal court ruled that this exclusion violated First Amendment protections, emphasizing that the government cannot discriminate against journalists based on their viewpoints. Now, the administration has appealed this decision, which has sparked debates about press freedom and government transparency. It is a dangerous and slippery slope when the government chooses which journalists and outlets are allowed, quote unquote, allowed to report. The next really current example is anti-protest legislation that has begun to come through. So since essentially since Trump was inaugurated, there has been a surge of anti-protest legislation across various states with bills introducing severe penalties for demonstrators, particularly those involved in protests that go against this administration's agenda. Critics, including civil rights organizations, argue that these measures aim to suppress dissent and could have a chilling effect on free expression and assembly. So this one, actually, I just want to break in here for a moment and also note that this is two pieces of the First Amendment, right? This goes into the ability to protest peaceably and to express disagreement with the government. So pay attention to that as well. So one of the examples is the federal Safe and Secure Transportation of America Energy Act, which proposes up to 20 years in prison and major fines for individuals disrupting pipeline activities. Critics argue that the vague language in these bills heighten the risk of misuse imposes a threat to First Amendment rights by potentially suppressing dissent and peaceful assembly. So keep an eye on anything that comes up in the news or across your feeds about any kind of anti-protest legislation and see what you can pick out of those. The next one is one of, uh, Trump's executive orders on language censorship in federal agencies. Now, something This is something that has not only affected federal agencies, it has begun to affect a lot of different public and private businesses across the board of all sizes. And it's something that I will go into in great detail later. Right after the inauguration, one of the very first executive orders that Trump signed was one mandating that federal agencies schools and agencies remove programs and content related to diversity, equity, inclusion, DEI. This order included banning specific terminologies associated with race, gender, and social justice, aiming to promote traditional values centered on God, family, and freedom. While the administration asserts that this move is intended to eliminate divisive, quote unquote, woke culture, opponents contend that it constitutes government censorship infringing upon free speech by restricting the use of certain words and limiting discussions on important social issues within federal institutions. I will link a partial list of these terms in the show notes, and I— we will actually continue to have conversations and discussion on this because this is something that is trickling down in a lot of different ways, and it's affecting free speech in many, many different ways. So I bring this up today. I'm sure that you have seen it come across your feeds, but I want you to pay attention to the way in which it's being shared, the way it's being reported, and see if you can begin to be discerning in the way that you look at the information and understand what's being shared. The next one is one that's been going on for probably the, the closer part of a decade, and that is book bans in libraries. The American Library Association reported a significant number of book challenges and bans in 2024 alone, with over 70% originating from organized groups, and elected officials. Most notably, books addressing LGBTQ+ themes and racial issues have been targeted, which of course raises concerns about censorship and the restriction of diverse perspectives in educational settings. So these are just a few examples that highlight the ongoing tension around preserving the fundamental right to free speech. They serve as a reminder of the importance of vigilance and advocacy in upholding our constitutional freedoms. Okay, so now we're going to talk about something that often gets tangled up in conversations about free speech, and that is cancel culture. I know, I know this may activate you in some way, but it is so important to talk about this and to be able to discern between being canceled and being censored. You've probably heard people say things like, I'm being canceled. What about my free speech? Well, here's the important distinction. Being canceled isn't the same as being censored. Censorship is about the government limiting or punishing speech. Cancel culture, whether you love the term or hate it, is more about social consequences. It's the collective reaction of a community or a workplace or an audience in response to something someone said or someone did. Sometimes these consequences are warranted, like when someone uses their platform to spread hate, mis- and disinformation, or harmful rhetoric. And sometimes the pushback can be disproportionate or unkind. That's real too. But in either case, the person's First Amendment rights have not been violated, they're still free to speak. What they're not free from is criticism or people choosing not to support them anymore. Here's the key: free speech means you can say something. It doesn't mean people have to agree with you, and it doesn't mean people owe you a platform. This is where we can really lean into deeper questions. Are we responding with fairness and compassion? Are we making space for people to learn and to grow? Are we holding people accountable in ways that are constructive, not punitive? So maybe instead of thinking in terms of canceling, we can think in terms of calling in. Calling in honesty, calling in care, and calling in and responding with healthy boundaries. Because our goal isn't just to win debates, it's to create spaces where we can all be more human and more kind. So where does this leave us? Free speech is a cornerstone of democracy. It allows us to speak our truths. It allows us to push back. It allows us to create change. But it also challenges us to listen well, to think before we speak, and to use our voices with care. It teaches us to really learn how to be discerning. Just because we can say something doesn't always mean we should. So I want to leave you with this: How will you use your voice? Not just because it's protected, but because it's sacred. Thank you for spending time with me today. Be kind to yourself, speak with intention, and stay curious. Until next time.