“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.”

These 45 words make up the complete First Amendment to the U.S.  Constitution.  For many of us, they are the most important words ever strung into a complex sentence, because they’re the foundation for the unique American way of life.

Originally, First Amendment protections applied only to laws passed by the U.S. Congress, but since 1925 ( Gitlow v. New York, 268 U.S. 652), they’ve applied to the rules set by government at any level — federal, state, and local.  The founders obviously intended that the First Amendment be a broad, sweeping statement of the rights they wanted to secure for themselves and their descendents.

But the First Amendment can’t protect Internet and social media users who forget that the free speech guarantee isn’t a free pass to saying whatever you want without facing consequences.  That’s because while the First Amendment protects some kinds of speech (that is, you can say or do it), there’s no requirement that other people (such as employers, fraternal organizations, or schools) have to associate with you once you do.  You can be fired, lose a professional license, or face a range of litigation for doing or saying things that, while they may be protected speech, violate other laws or contracts.

Also, the First Amendment does not protect all kinds of speech.  Justice Oliver Wendell Holmes wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Other areas that are not protected include solicitation, child pornography,  and obscenity.

In addition, there are seven broad categories of speech (which includes things written or published online or in social media) that may not be protected by the First Amendment.  Knowing what they are, so that you can decide what risks you are willing to take, is just good sense.

Hate Speech

OK, it protects it sometimes — and sometimes it doesn’t.  For example, the Supreme Court ruled that  Westboro Baptist Church’s hateful protests at military funerals are legal — while most “fighting words” are not.  A Jehovah’s Witness went to prison for calling a police officer a “God damned racketeer”, a teenager was jailed for burning a cross, and Hustler paid damages to a preacher over a parody labelled as such in the magazine.

Inciting Violence

Speech that incites violence or encourages the audience to commit illegal or dangerous acts. This is a gray area that has resulted in many kinds of litigation.  A radio station tried to claim First Amendment protection when two cars chasing a station car carrying prizes forced a third car off the road, killing the driver.  But the courts said that reckless driving was the foreseeable result of the station’s broadcasts.  In another case, chat room conversations that encouraged suicide were also denied First Amendment protection.

Supporting Terrorism

The Patriot Act outlawed “material support” to domestic or foreign terrorist groups, even if that “support” intends to offer peaceful alternatives to conflict through humanitarian aid.  For more information on this sensitive and rapidly changing topic, check websites such as The Center for Constitutional Rights or  Wikipedia.

Public Employee Speech

Public speech made in the conduct of their duties by public employees may not be protected.  Richard Ceballos was a LA County Sheriff’s Deputy whose grievance went all the way to the U.S. Supreme Court to clarify a key point that many social media users should know by heart:  the law (usually) distinguishes between what an employee says as a private citizen, and statements made as part of the person’s job responsibilities.

Your employer, however, may not have to make any such distinction.  In many states, you can get fired for making statements as a private citizen that your employer finds objectionable.  And if you work in a regulated industry such as insurance, financial services, banking, health care, pharmaceuticals, or education, you must be aware of an alphabet-soup of regulations such as FINRA, HIPAA, FERPA, MIPPA, NAIC, plus SEC, FTC, and FCC rules.

Some regulations, notably FINRA  and FERPA make no distinction between what a person says as a private citizen and what they say as part of their job.  So this is an area that each social media user should understand as it relates to their own profession.

Defamation

Slander, libel or defamation. There are many, many nuances here — and the rules are different depending on whether or not the injured person is a public or private figure.  Context matters, too, and so does whether the words used are an opinion (usually, but not always, protected) or factual statement (not protected unless the facts are provably true — and proving the truth is often far more costly and difficult than you might think). Defamation can be a criminal offense in some countries.

The case of blogger Nik Richie, who is facing millions in damages for defamation over what readers said in the comments section of his gossip blog, points out just how serious the consequences may be in this arena.

There are two kinds of lawsuits that sound similar to defamation when you try to describe them in layman’s terms, but they are based on different legal principals and apply to companies and products.  These are product disparagement and tortious interference.  Once rare, defamation, product disparagement and tortious interference lawsuits are becoming increasingly common.

Intellectual Property

Publishing confidential, trade secret, or copyright material may be a civil or criminal offense, depending on the nature of the intellectual property that is being published without permission, and the jurisdiction in which the offense occurs.  I’m not going to even attempt to discuss this in any detail, because the rules are just too complex.

But remember that non-disclosure agreements, employee policy agreements, and contracts apply online and off.  Yes, there are whistle blower statues in some states that will protect an employee who goes public with otherwise protected information because of a threat to public health or illegal activity.  But there is no absolute protection for whistle blowers — and it doesn’t exist everywhere.

True Threats

True threats are like many other areas of First Amendment protection: context, target, and intent matter in determining what is or is not a true threat. Some threats are always illegal — any threat to the President of the U.S., for example.  Any online comment that could be construed as a terrorist threat, for instance, is likely to be treated as a true threat.

For example, in 2010, Deer Park Middle School in the Round Rock Independent School District, near Austin, Texas was evacuated and the FBI called in after a teenage Facebook user in Saudi Arabia made a bomb threat after a girl at the middle school “unfriended” him.  The teenager — whose identity is protected because he is less than 17, and a minor under Saudi law, is facing tough questions from Saudi and U.S. officials under the “true threat” doctrine.

In other cases, courts have ruled that in order to be a true threat, very specific circumstances must exist.  Check out Stanford University’s The Nuremberg Files for a detailed account of the case in which over 200 doctors sued a website which published “Wanted: Dead or Alive” posters with the photos and home addresses of doctors who performed abortions, with details about the doctor’s families (such as the school their children attended, where their spouses worked, and what kinds of cars they drove).

The doctors said that the wanted posters constituted a true threat — and two murders were attributed to the campaign.  (One doctor murdered at church, another at home.) In this case, the Supreme Court ruled that the First Amendment protected the website and its wanted posters.

For more on the subject of laws that affect social media users, check these articles:

Disclaimer:  I am not an attorney.  Nothing in this post or any article linked to in this article purports to provide legal advice.  Always consult competent legal counsel before making decisions about your actions and conduct.