Free speech is one of the most debated issues in the United States. Since the right to speak freely is one of the most important provisions in the U.S. Constitution, it stands to reason that Americans have long sought to preserve and understand this freedom and its implications.
But before discussing any nuanced cases involving the right to free speech, we should answer one basic question: what is the freedom of speech?
The freedom of speech is the ability to say, write, or otherwise express ideas and beliefs without facing punishment or retaliation from the government.
Which amendment guarantees the freedom of speech?
The freedom of speech is guaranteed to all Americans by the First Amendment of the U.S. Constitution. It states in part, “Congress shall make no law … abridging the freedom of speech.”
The Founding Fathers understood how important it was to allow every citizen to speak freely, and that is why they amended the Constitution to enshrine this right.
What is important about the freedom of speech?
Speech is the way we express our thoughts. Therefore, the only way to ensure a truly free society is to allow its members to enjoy the freedom of speech.
When we talk with other people, we shape each other’s ideas, learn about each other, and grow in understanding. We work together in exploring our world and expand our knowledge and human systems—all through speech.
To live freely in accordance with your beliefs, you must be able to express those beliefs in public. If the government can dictate what you can or cannot say, it has the power to make you express ideas that violate your beliefs or keep you from expressing what you do believe. When the government controls speech, a society is not free.
The freedom of speech also protects more than just spoken words. Generally speaking, artists who express messages through their creations are engaging in speech, and these expressions are protected by the First Amendment. Just like the government cannot determine what words you say, it also cannot control what ideas you express through different mediums.
When government officials attempt to control speech, they are not simply limiting the words that come out of your mouth. Words are more than mere noises in the wind. Rather, to control speech is to try control what you think and what you do. If government officials have the power to censor speech, they have the power to influence your thoughts and beliefs. That is why the freedom of speech is a fundamental part of any free society.
Is the freedom of speech dangerous?
An increasing number of people argue that free speech is dangerous because it allows people to say hurtful things. They argue the freedom of speech is just a piece of rhetoric used by those who want to spew offensive ideas.
In reality, free speech is a right that every individual possesses as a human being created by God. This right is not limited to people of any belief, but rather extends to every person and belief system.
It is true that not all ideas are good or beneficial. Some ideas are bad, false, or even evil. But the way to respond to these negative ideas is not to shut down speech through government interference. In fact, it is exactly the opposite.
In a society governed by free speech, each person can express their beliefs. If someone expresses a bad idea, every American has a right to respond to that statement with a positive and truthful one. Robust debate is essential to determining which ideas are true and good. When more people speak up for the truth, false and worthless statements are recognized for what they are.
Sometimes, a discussion with someone who holds different beliefs than you can help you see a new perspective. It may even help you view the truth in a new light. But even if it does not, it is important to remember that those with different views are human beings with dignity just like us, and their right to free speech is just as important as ours. If their right is taken away, ours can be taken away just as easily.
A society without the freedom of speech is far more dangerous for its citizens than hearing a bad idea. If every citizen does not have the freedom of speech, then government officials will get to decide which ideas can be expressed. That is too much power for anyone to wield.
If government officials in a society without free speech have bad ideas, they can implement them and censor anyone who disagrees. Instead of a robust debate over what is a good and true, such a society is forced to promote only the preferred false and worthless ideas or face brutal government retaliation.
For much of human history, free speech did not exist. And in many countries across the world today, it still does not exist. These countries are ruled by dictators who ensure those who disagree with them are silenced, imprisoned, or even killed. The authors of the Constitution guaranteed our freedom of speech to protect us from that danger.
What is compelled speech?
When we think of free speech, the first thing that comes to mind is often the freedom to say what we believe. But what about our freedom not to say things we don’t believe?
Compelled speech occurs when the government forces you to articulate, advocate, promote, communicate, or otherwise express messages or beliefs you do not want to. Thankfully, the First Amendment also protects us from being compelled to speak, and the Supreme Court has repeatedly held that compelled speech is unconstitutional.
Alliance Defending Freedom has represented many clients seeking to defend their freedom from compelled speech. Most recently, ADF CEO, President, and General Counsel Kristen Waggoner argued a compelled-speech case called 303 Creative v. Elenis before the Supreme Court on Dec. 5, 2022. Here are some of ADF’s highest-profile Supreme Court cases involving free speech:
In 2015, a California law required pro-life pregnancy centers to inform pregnant women that they could obtain free or low-cost abortion services in the state. In addition, the law required non-medical pregnancy centers to add large disclosures stating they were not medically licensed, wrongly implying they were not qualified to offer services or materials to pregnant mothers.
ADF attorneys represented a nonprofit network of pregnancy centers called the National Institute of Family and Life Advocates (NIFLA) before the U.S Supreme Court in a lawsuit against California’s policy. They argued pregnancy centers could not be forced to distribute materials advertising abortion because it violated their deeply held religious beliefs.
In a 5-4 decision, the Court ruled that California could not compel pro-life groups to advertise a message against their beliefs. Writing for the majority, Justice Clarence Thomas wrote “the people lose when the government is deciding which ideas should prevail.”
Cake artist Jake Phillips received a request in 2012 to create a custom wedding cake celebrating a same-sex marriage. As a Christian, Jack believes marriage is between one man and one woman, so he politely declined the request.
But members of the Colorado Civil Rights Commission took it upon themselves to punish Jack for his religious beliefs. They held he violated the state’s anti-discrimination law, even though they had excused three bakers who refused to create cakes opposing same-sex marriage for a religious man.
ADF represented Jack at the U.S. Supreme Court, arguing that he cannot be compelled to express messages he disagrees with. The Court held that Colorado was wrong to punish Jack because it had acted with clear hostility toward his beliefs, but it did not rule on the free speech violation in Jack’s case.
Lorie Smith is a graphic artist in Colorado. In 2012, she decided to start her own graphic art and web design studio, 303 Creative, where she seeks to create custom art and websites promoting ideas that she deeply cares about—those that are consistent with her faith.
But the same law used to target Jack in the Masterpiece case threatens Lorie’s ability to say what she believes without fear of government punishment. While she wants to create custom art promoting biblical marriages, she realized the law would force her to also create custom art celebrating opposing views of marriage. This would violate her beliefs.
With the help of ADF attorneys, Lorie challenged the Colorado law. She is seeking the freedom to create art without being compelled by the government to express messages she disagrees with. ADF delivered oral arguments before the Supreme Court on Dec. 5, 2022, and Lorie is currently awaiting a decision.
The freedom of speech under attack
Compelling speech is just one way government officials have threatened the freedom of speech in recent years. Sadly, many Americans have seen their right to speak freely fall under attack in many different sectors.
Across the country, public school teachers have been punished for choosing which messages to express or not to express. For example, Peter Vlaming, a high school teacher in Virginia, was fired because he declined to refer to a female student using male pronouns. ADF attorneys are representing Peter as his case awaits a ruling from the Virginia Supreme Court.
Similarly, Tanner Cross is an elementary school teacher in Virginia who opposed a school board policy requiring teachers to deny the truth about what it means to be male and female. When he expressed his concerns, he was suspended. ADF attorneys represented Tanner at the Virginia Supreme Court, which affirmed his right to voice his concerns about the policy. Two other teachers, Monica Gill and Kim Wright, have joined Tanner in seeking to strike down the school board’s unconstitutional policy.
But teachers are not the only ones who have experienced attacks on their right to free speech. Blake Allen, a public high school student in Vermont, was suspended for speaking out against a school policy allowing a male student into the women’s locker room. Her father, Travis Allen, was suspended without pay from his job coaching the middle school girls’ soccer team after he voiced support for his daughter.
ADF attorneys are representing Travis and Blake in a lawsuit against the school for violating their First Amendment rights. The school lifted Blake’s suspension after ADF filed a lawsuit, but it said Travis would remain suspended through the remainder of the soccer season.
Attacks on free speech have also made their way into higher education. In another injustice involving the use of preferred pronouns, philosophy professor Dr. Nicholas Meriwether was threatened with “corrective actions” from Shawnee State University after declining to refer to a male student with female pronouns. ADF filed a lawsuit against the university on behalf of Dr. Meriwether and eventually secured a victory for the professor at the U.S. Court of Appeals for the 6th Circuit.
At Georgia Gwinnett College, student Chike Uzuegbunam wanted to speak and hand out pamphlets sharing the Gospel. But college officials twice stopped him from doing so, violating his First Amendment rights.
After ADF attorneys filed a lawsuit against Georgia Gwinnett College, the college amended its policies in an attempt to avoid accountability for censoring Uzuegbunam’s speech. Because of the changed policies and the fact that Chike had by this time graduated, two courts dismissed the case. ADF appealed to the U.S. Supreme Court, which ruled in an 8-1 decision that the college officials (and other government officials) should not get a free pass for violating constitutionally protected freedoms.
In the marketplace
The 303 Creative and NIFLA cases above are prime examples of the government violating the First Amendment by compelling speech. But they are far from the only examples of free-speech violations in the marketplace.
When Joanna Duka and Breanna Koski founded Brush & Nib Studio in 2015, they wanted to use their skills of painting, hand-lettering, and calligraphy to create art consistent with their beliefs. They soon found out a Phoenix law would force them to create messages promoting events that conflicted with their beliefs, including same-sex weddings. ADF filed a lawsuit on behalf of Brush & Nib seeking to protect the studio’s freedom of speech.
The Arizona Supreme Court ruled in favor of Brush & Nib, recognizing that Joanna and Breanna have a right to run their business in accordance with their beliefs and cannot be compelled by the government to speak messages or celebrate events that go against their faith.
Steve and Bridget Tennes were kicked out of a farmer’s market after stating their biblical beliefs about marriage. The Tenneses own and operate Country Mill Farms in Charlotte, Michigan, a second-generation family farm.
For years, the farm sold its produce to all customers at the East Lansing Farmer’s Market, where the city repeatedly invited them to participate as the only organic apple grower. That changed after Steve and Bridget were asked a question about their family’s view on marriage on Country Mill’s Facebook page.
As Catholics, they gave an honest answer based on their biblical beliefs. East Lansing officials saw that post and immediately worked to ban Country Mill from its farmer’s market going so far as to change the market policies to exclude Country Mill and only Country Mill from future market participation.
The case was tried before a district court in July 2022, and we are awaiting a ruling from the Court. However, the district court already ruled that the Tenneses can sell their produce at the farmer’s market while the case proceeds.
The cases listed above are just a few of the many examples of attacks by the government on the freedom of speech. While various courts have struck down some of these attacks, one thing is clear: some government officials are actively attempting to violate free speech rights around the country.
The authors of the Constitution left no question about their intentions regarding the freedom of speech. They wanted every American to enjoy it, and they wanted to protect them from government officials infringing upon it. Now more than ever, we must strive to preserve the Founders’ vision of a free America.