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Knowledge Base

The Limits of Free Speech

What are the limits on free speech?

The First Amendment prevents Congress from prohibiting or abridging the free exchange of speech. That has been interpreted to include a few natural limitations, based on the prevention of the use of force. Advocating for immediate force, speaking fraudulently, and defaming individuals or businesses are not protected by the First Amendment.

What is fraud?

Fraud is a false representation of facts through words, conduct, misleading allegations, or concealment of what should have been disclosed. The purpose of fraud is to deceive another individual to gain unlawful or unfair advantage, surrender a legal right, or inflict injury in some manner.

What is defamation?

Defamation is making false claims about a person’s business practices, character, financial status, morals, or reputation privately and/or publicly. The written form of defamation is called libel and the vocal form is called slander.

How are libel and slander different?

Oral defamation is a slander, whereas printed or published defamation is libel. Most people are familiar with the term slander, although often the correct term is libel. Both are forms of defamation and are not protected under freedom of speech.

Are the limits on free speech explicitly stated in the Constitution?

No, they are not. Instead, they have been interpreted through the general principle that individuals are not allowed to use harm to get what they want. The Constitution also only mentions what Congress may not do, namely restrict speech. That is why private organizations have a Constitutional right to restrict speech on their property.

What if immediate harm is advocated, but nothing is said out loud. Is that a violation of free speech?

One can imagine a person robbing someone with a weapon, but not saying anything. Instead, there is an implied threat. Even though no speech is said out loud, a threatening action counts as a “close substitute” to speech, and is therefore a violation of free speech.

Is there a difference between immediate and abstract calls for force when it comes to free speech?

Yes. Calls for the immediate use of force, like harming an individual, are prevented under free speech. But abstract calls for force, like a political position for the forcible overthrow of government common in the Marxist position, are protected under free speech as a form of political or persuasive speech.