CBA Record November-December 2023

SUPPRESSION OF EXPRESSION: LIMITS ON FREE SPEECH? By Lynn Semptimphelter Kopon

F ree speech is the foundation of our democracy. It is also a highly charged and often misunderstood topic, with many seeking to use it to their own political advantage. While speech must be protected, recent events show some parties demanding free speech pro tection for their own views while censoring speech they consider abhorrent or morally repugnant. This thinking fails to consider the consequences when the power balance shifts. And yet, the rule of law requires consistency across the political spectrum. The First Amendment demands pro tection for speech. Case law favors unre strained speech, even when offensive or hateful to certain groups or the party in power. But what are the limits to this free dom? Is some speech unprotected? What are the tests and standards of review that allow restraint on speech by governmental authority? What protects minority rights from majority censorship? Our democ racy is sustained by the right of citizens to different viewpoints, the right to chal lenge those in power, and the balance of power between the branches of govern ment. Without this balance, the vagaries of politics could endanger our democracy and precipitate illegal restraint. Strict Scrutiny Because free speech is so crucial to our democracy, laws targeting speech, spoken, and written, are subject to review under strict scrutiny, the strictest constitutional test. This applies to federal, state, and

local ordinances, and government regula tions and policies. The courts have developed standards against which attempts to regulate are examined. In general, governmental authority may not suppress or force con formity with ideas or messages. Under strict scrutiny, the government may place some restraints on speech, if such restraints serve an important governmen tal interest and are narrowly tailored to serve that interest. Ashcroft v. U.S., 542 US 656 (2004). Ashcroft affirmed an injunction against a federal law that sought to protect minors online by requiring a content provider to keep harmful content away from minors by requiring use of a credit card. The Court held that the government did not sustain its burden of proof in showing that the more narrowly tailored means to accomplish the objective (fil tering software) was less effective. Justice Kennedy noted, “content-based prohibi tions, enforced by severe criminal penal ties, have the constant potential to be a repressive force in the lives and thoughts of a free people,” Ashcroft at 659. In Citizens United v. FEC, 558 U.S. 310 (2010), the Court held that in the context of political speech, the govern ment may not restrict disfavored speakers, striking a federal law that banned expen ditures for electioneering communica tions by an independent corporation. Courts have distinguished between protected and unprotected speech, but

these lines are not static. Unprotected speech (speech that may be restrained by the government or governmental author ity) has been interpreted with degrees of breadth, but this narrow category includes true threats, fighting words, incitement to violence, and obscenity. Other speech, while hurtful and hateful, remains pro tected. In balancing threats against free dom, courts seem increasingly tolerant, although state legislatures, not so much. “A free society must give much breathing space to hateful speech in order to avoid thought control and the censorship of unpopular views by the government,” D. Hudson, Is Hate Speech Protected by the First Amendment , Foundation for Individ ual Rights and Expression, Feb. 8, 2022. Speech that is otherwise protected may be limited under some circumstances only if the limiting law is not based on the content or viewpoint of the speech. The government must show that the law limiting speech serves a compelling gov ernmental interest and is narrowly tailored to advance that interest. If a less restrictive means exists for the government to achieve its interest, the less restrictive means must be applied. Reed v. Town of Gilbert, 576 US 155 (2015). In Reed, the Court struck down a law requiring different size signs for different purposes. The Court held this was content-based legislation that was not narrowly tailored to advance a legitimate government interest. The Court explained, “Innocent motives do not remove the danger of censorship presented

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