Talk:United States free speech exceptions

Exceptions?
This content is quite good, but I don't know if the title and "exception" framing are the best. I think it would be more common for scholars to refer to the first categories of speech as "low value speech" or similar. As we saw vividly in R.A.V., these categories are far from outside of the First Amendment, and thus framing them as "exceptions" is misleading. The problem of government employee speech might is not quite an exception, either (more like a waiver). Perhaps it would make more sense to treat government employee speech with its own article. Similarly, schools and prisons have received special consideration in the case law, but perhaps these can just be viewed as environments where the government has a strong interest on the scale. Government as speaker isn't really an exception either. If you really think of the government as the speaker, then a case where the speaker wins is hardly an exception. I agree that all of the subheadings in this article have some utility as doctrinal categories that are analyzed as such in the literature and (sometimes) in the cases; my discomfort only relates to lumping them all together as "exceptions." Just my two cents. Savidan 22:30, 6 January 2012 (UTC)
 * Hmmm. I can agree with you as to the second half of the article (government in certain roles) that aren't really exceptions but special instances where the protection is lower. I'm certainly open to article title suggestions to resolve that, but I believe most of this can fit under a similar heading of areas where SCOTUS has found limited free speech protection. Any ideas for how to best phrase the title?
 * As to the other sections (false statements of fact, obscenity, etc.) all the sources I have looked at, both cited and not, characterize them as exceptions. Lord Roem (talk) 01:28, 7 January 2012 (UTC)
 * Maybe United States free speech restrictions? or limitations or something in that vein? Lord Roem (talk) 01:29, 7 January 2012 (UTC)
 * Currently, there is First Amendment to the United States Constitution -> Freedom of speech in the United States -> this article. I don't know if "Freedom of speech in the United States" was the next appropriate daughter article. More likely it should be "United States First Amendment free speech law" or similar. Perhaps "First Amendment free speech law" in recognition of the fact that, even though other countries have a first amendment, none of those first amendments deal with speech. Perhaps "First Amendment free expression law" in recognition of the fact that, as interpreted, there really is no difference between the speech and press clauses. The important thing for this daughter article is to winnow out the free exercise, establishment, and freedom of association parts of the First Amendment. "Freedom of speech in the United States" seems to both narrow and broaden, in the sense that it also includes state constitutional rights to speech, statutes, and perhaps other things that lawyers don't think of as law. Once you had the appropriate daughter article for the Free Speech Clause [or, more likely, the speech/press clause(s)], I do not think exceptions would be the next appropriate daughter article. Certainly many of the subheadings in this article might qualify for their own daughter article. If you wanted any kind of intermediate daughter article at all, I think it would have to be for "low value speech." The utility of this article would be to discuss a few concepts that transcend all low value categories: e.g. the content discrimination rule of R.A.V., the attempts by the government to create new categories and the comments of the court on the likelihood that other categories exist (which are spread throughout cases in different categories). If you pick up a First Amendment casebook, I think you would be unlikely to find all of these things grouped together as "exceptions." My casebook (Stone, Seidman, Sunstein, Tushnet, and Karlan), to the extent that it grouped any of these together at all, grouped together the "low value" speech categories. Savidan 20:30, 7 January 2012 (UTC)
 * What do you think about having the other article (Free speech in the United States) as a more historical article and expanding this one to be Free speech law in the United States? If that was the case, I'd be glad to expand the article to include broader concepts (strict scrutiny, time-place-manner restrictions, R.A.V., etc.). Thoughts? Lord Roem (talk) 20:41, 7 January 2012 (UTC)
 * I think expanding this article into a First Amendment free speech article could be a good idea. I do think the title should make clear it only concerns First Amendment free speech law, to the exclusion of free speech law found in state constitutions, federal or state statutes and regulations, international law, or any other source of law. The title should also make clear that it is about law, i.e. excluding other measures (how easy is it economically to publish a book or newspaper, etc.). Savidan 00:03, 8 January 2012 (UTC)

So, First Amendment free speech law? That could work. Thanks for the help! Lord Roem (talk) 00:31, 8 January 2012 (UTC)

Very unhappy with the DYK hook for this article, btw. Hillmon is a hearsay exception (i.e. it is hearsay but is admissible). Commercial speech et al. are not free speech exceptions (i.e. they are speech and are constitutionally protected). The real irony of this is not only do we know for sure that all of these categories receive quite a bit of constitutional protection, most of these categories (especially commercial speech and fighting words) are on life support. That is, many very much doubt whether they receive any less protection than any other speech. Savidan 23:29, 11 January 2012 (UTC)


 * The DYK nom was made before this conversation and I had a lot in the pipes so I did not realize the needed change.
 * I generally agree with your above sentiment, which is why I will be expanding the article to cover broader First Amendment free speech law. Lord Roem (talk) 01:52, 12 January 2012 (UTC)

Also, what about sexual and non-sexual harrassment as exceptions? And things like disorderly conduct, where swearing at a cop could get you arrested? The snare (talk) 15:41, 12 November 2012 (UTC)

Stevens
How can this page be considered complete without any reference to United States v. Stevens? — Preceding unsigned comment added by Nstrauss (talk • contribs) 21:43, 17 July 2012 (UTC)

External links modified
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Time, place, and manner?
I got to this page from a Google search. It didn't have what I was looking for: this page is only about content. There are lots of other limits on what the first amendment protects. I don't know them well enough to write anything without a whole lot of work, nor do I know where to find them on WP. But we should at least link them from this page. --Dan Wylie-Sears 2 (talk) 22:52, 6 February 2017 (UTC)

plz change
plz change "exceptions" to "illegal laws" since these laws abridge speech. interesting that the freedom of speech is mentioned AFTER religion, which again seems absolute. freedom of speech was considered absolute — Preceding unsigned comment added by 128.114.255.4 (talk) 22:07, 21 November 2018 (UTC)

Edits regarding the definition of freedom of speech
Posting here to try to move the discussion out of the edit summaries. There's a back-and-forth editing over the definition of "free speech". My position is one mirrored by the Freedom of speech page on Wikipedia (emphasis added): ""Freedom of speech and expression, therefore, may not be recognized as being absolute, and common limitations to freedom of speech relate to libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, food labeling, non-disclosure agreements, the right to privacy, the right to be forgotten, public security, and perjury.""

Which is to say, "freedom in speech" is the ability to speak without restriction. So if there is a restriction, then that is a limitation on freedom of speech. Whether the restriction is legal, moral, or otherwise justifiable has no bearing on whether it actually restricts the "free speech" or not. Of course it does: all restriction on the freedom to speak, restrict "free speech". This is because "free speech" is the freedom to speak.

This is in contrast to the counter-opinion, that "free speech" is simply a synonym for legally protected speech (which in the U.S. could be described as "First Amendment protected speech"). Its not that this definition is incorrect (since we can define words to mean whatever we want them to mean, after all), its that this definition isn't widely adopted on Wikipedia. And this is probably with good reason. For example, the Chinese constitution also guarantees freedom of speech, and I presume their courts have ruled that all their legal restrictions on saying certain words do not, in fact, violate the Chinese constitution. Should we therefore also say that the Chinese government has no restrictions on free speech? I think not!--Masebrock (talk) 07:35, 30 November 2018 (UTC)

In response to edits of Dec. 2
FreeSpeechGuy's edit summary says: ""That's overwhelmingly wrong. Incitement is not free speech. You're defining the specific concept of "free speech" as any and all speech. If it was any and all speech, it wouldn't be a specific concept with a specific name. Incitement, threats, etc are not exceptions because they are not free speech in the first place""

To which I respond: "Freedom of speech" is a term that is contrasted with the word "speech", by distinguishing that there are no legal restrictions upon it. Its the same difference between "free-range chicken" and "chicken".

If we were to follow your definition of "free speech" here (as speech that is legally protected), we would have to say that "the U.S. has free speech, but places limitations on the freedom of speech". Which may be intelligible only to lawyers, since colloquially "free speech" and "freedom of speech" are synonymous. And once again, its not that this is incorrect, its that it differs significantly from the standard use in the rest of Wikipedia.--Masebrock (talk) 04:49, 3 December 2018 (UTC)


 * "Free speech" is not something that is legally protected in literally any nation except the United States. So to cite an article that explicitly talks about "freedom of speech" as defined by the UN and a majority of countries is irrelevant to an article about free speech in the US. ('Hate speech', for example, is a nonsense concept that falls under "free speech". It isn't protected in any country except the US because, well, the US is the only country that protects free speech.)


 * "Free speech" is any and all speech and expression which does not violate the rights of others. Incitement, threats, etc violate the rights of others. They are therefore not free speech. Their illegality is therefore not a restriction, exception, or limitation on free speech. In contrast, countries that make 'hate speech' illegal do have exceptions to free speech - which is just another way of saying they have violations of the human right to free speech.FreeSpeechGuy (talk) 05:19, 3 December 2018 (UTC)
 * It is not the Wikipedia consensus that "free speech" refers to the legal rights of a given country, and definitely not only those of the United States. See the articles "freedom of speech" and "Freedom_of_speech_by_country" for evidence of this.


 * You are trying to draw a distinction between "free speech" and "freedom of speech", but these are colloquial synonyms. One good reason we don't define "free speech" as "legal rights of speech in the United States", is that this article would have to say: "The United States does not limit free speech, but does place limits on freedom of speech".--Masebrock (talk) 05:38, 3 December 2018 (UTC)

This is an article about "free speech" in the United States. Speaking of any other country is irrelevant. Stop doing that. Furthermore, you keep arguing my points for me. "Free speech" is more than a legal concept. As I've said, it is any and all expression which does not violate the rights of others. In the United States, the First Amendment recognizes this right almost perfectly; it does not define a right - something a government cannot do in any logical sense.

Once again, incitement et al is not free speech. It has never been recognized as free speech in any philosophy, including (and relevantly) the philosophies that underpin the US Constitution and the beliefs of its founding fathers. If it is not free speech, then its illegality cannot possibly be an exception. (An 'exception' to a right is merely a violation of a right, like laws against 'hate speech' or blasphemy.)FreeSpeechGuy (talk) 04:52, 4 December 2018 (UTC)


 * The standard use of terminology across articles is absolutely relevant to the discussion, because it is evidence of a larger Wikipedia consensus. It doesn't matter that you have personally come to the conclusion that hate speech laws violate "free speech", but incitement laws don't. Your argument that we should define "free speech" as relating to your particular philosophy of natural rights, is a plain neutral point of view violation (WP:NPOV). I'm reverting back to the original until we can come to a consensus- perhaps we could seek a neutral third party opinion? --Masebrock (talk) 06:06, 4 December 2018 (UTC)
 * Which is a more neutral definition here?
 * 1. "Free speech" is the ability to speak freely.
 * or
 * 2. "Free speech" is the ability to speak freely, unless that speech is in violation a particular philosophy of natural rights.--Masebrock (talk) 06:17, 4 December 2018 (UTC)

No, it is not relevant. The phrase refers to views of free speech that are completely different from the US view. Only US case law and philosophies of the Founding Fathers are relevant here.

You're intentionally misrepresenting what I've clearly laid out: Free speech is any and all speech which does not violate the rights of others. It is not merely any and all speech. If it was, then the phrase becomes meaningless because it fails to identify any specific category or categories of speech.

Furthermore, your attempt to give a neutral definition is philosophically incoherent. The ability to speak freely doesn't exist in a vacuum. If one person able to say absolutely anything, even in violation of another person's rights, then no other person is able to speak freely since that ability is predicated on not fearing for one's safety (among other things). That is, if "free speech" means person A can incite violence on person B in response to person B saying he has an opinion person A dislikes, then person B does not, in fact, have "free speech" under your (or any) definition. Person B's ability to speak freely would necessarily be chilled by the prospect of violence. You want free speech to exist in a vacuum with your definition, but it doesn't. Rights never do. That is why incitement et al cannot logically be defined as free speech.

Modern US case law entirely supports what I've laid out here (and the fact that this entire page should either be deleted or renamed, an option which doesn't seem to exist). In Tinker, Brandenburg, Cohen, Texas v Johnson, Virginia v Black, and every other major decision of the past 70 years, the decisions have been predicated on whether or not a law or ordinance infringes upon the rights of others. In instances where a person did not have an inherent right being infringed upon (such as US vs American Library Association), the law/ordinance in question stood. This is First Amendment case law 101 stuff. Free speech in the United States is unique in that it is fully recognized rather than restricted; it isn't understood to (uselessly) mean any and all speech. It is a specific category of speech which specifically relates to and exists within the rights of others. — Preceding unsigned comment added by FreeSpeechGuy (talk • contribs) 04:03, 5 December 2018 (UTC)
 * You say that "only US case law and philosophies of the Founding Fathers are relevant here', but this is not how the NPOV works. We aren't restricted to only citing Chinese case law when talking about Chinese governmental policies, or restricted to only referencing Confucian philosophy. This is why we cannot accept your definition of "Free speech is speech which does not violate the natural rights of others". The "natural rights" bit is extremely ideologically loaded and violates WP:NPOV.


 * Your argument that I render the phrase "meaningless" has already been addressed, but I will repeat myself: "Freedom of speech" is a term that is contrasted with the word "speech", by distinguishing that there are no legal restrictions upon it. This is how the term is used across Wikipedia.


 * You argue that restrictions on freedom of speech shouldn't be called "restrictions", because they actually increase net-speech, by increasing people's well-being. AFAIK every modern restriction on speech (by the US or foreign governments) has been done so with the stated purpose of benefiting the people of the country. (This is particularly true of hate speech laws, which you earlier categorized as clear "free speech" restrictions.) China could likewise argue that if it wasn't for their restrictions on political speech, many people would die in a violent revolution, and thus their restrictions on speech are actually net-positive. And hey, maybe they are right! But needless to say, this is an utterly unworkable framework for an encyclopedia to use. --Masebrock (talk) 04:41, 5 December 2018 (UTC)
 * So again, which is the most neutral definition?
 * 1. "Free speech" is the ability to speak freely.
 * 2. "Free speech" is the ability to speak freely, unless that speech could negatively impact others.
 * Considering that essentially all speech controls (political censorship, obscenity law, copyright law, classified information, ect.) are based on the supposed negative impacts that speech might have (including the possibility of the speech leading to death, in some instances!), wouldn't this render the concept of "free speech" rather meaningless?--Masebrock (talk) 07:08, 5 December 2018 (UTC)

That isn't the definition of free speech I gave you. You're inserting specific concepts of natural rights when I haven't mentioned them at all. You're either ignorant of this entire topic or you're simply being dishonest.

It isn't an ideology to say that rights don't exist within a vacuum. They don't. They exist in a balance with each other, not in violation of (or 'exception to') each other.

I've addressed your citation of one Wikipedia page multiple times. I'll do it again. The UN/European/South American/Australian/etc understanding of "freedom of speech" is necessarily different from what free speech means in US case law.

Your argument goes off the rails from here. I do not argue that restrictions shouldn't be called restrictions. I argue that exceptions and restrictions are violations. Furthermore, I do not argue that restrictions increase net speech. I have no idea what you're even trying to argue here. I also argue nothing about well-being. You were literally wrong 3 different times in one sentence. And that's just in your assessment of what my argument even is. I don't know why you claim every modern restriction on speech is done with the stated purpose of benefiting people in the country. Aside from that claim being dubious in the first place, it's not relevant. Your parenthetical point about hate speech laws seems to imply you think the US has them. It does not. I'll let you guess why they are unconstitutional here.

Regarding your two definitions, I feel like I'm in a YouTube comment section. Your first definition is not what you've been arguing. You've been trying to define free speech any and all speech. "To speak freely" implies a lot. "Being free" to do something does not and has never meant "being able to do whatever one pleases". I currently have free movement. That doesn't mean I'm therefore free to move my hand into someone's skull - nor does it mean that the illegality of moving my hand into someone's skull is a restriction or exception to my free movement. Your second definition continues to move the goal posts, just like it did last time. No one is talking about positive or negative impacts on others. The normative nature of violating the rights of others is irrelevant here. It is enough that rights violations happen at all. That is, free speech is defined within the context of other rights (and not in a vacuum). It doesn't matter if free speech impacts others negatively. Indeed, many things that fall under free speech impact others negatively. That has no bearing on the nature of the speech.

This has been a tremendous waste of time. You aren't on point about anything here, nor are you familiar with US case law or its general history, for that matter. If you are, you haven't given hint to that fact. The definition of "free speech" has absolutely nothing to do with its impact on others; it's unclear why you've introduced this brand new, irrelevant topic. "Free speech" is a human right, and like with all human rights, it exists within a world where it must be defined so as to be universal to all humans. If "free speech" is defined to include any and all speech, then it includes incitement and threats. If it includes those, then it ceases to be a right for anyone who is (or fears to be) a victim of incitement or threats. "Free speech", then, necessarily ceases to be universal. There's a reason you've been refusing to engage in this point in good faith.FreeSpeechGuy (talk) 10:30, 5 December 2018 (UTC)


 * The "human rights" framework is ideologically loaded and unsuitable for the NPOV. Again, which is the more neutral definition here?
 * 1. "Free speech" is the ability to speak freely.
 * 2. "Free speech" is the ability to speak freely, unless that speech violates a particular philosophy of human rights.


 * I understand that that "free speech" means something different to lawyers than to the layman, particularly in U.S. case law. The thing is, we don't have to accept lawyer-speak on Wikipedia. The definitions of words shouldn't change based on what page a Wikipedia user is reading.


 * I don't know how to interpret your argument where you said "that ability [to speak] is predicated on not fearing for one's safety" if you are not talking about human well-being, and the negative impact of speech on others. There's no way we can, in the NPOV, write that incitement laws don't violate "free speech" because they were enacted for people's safety, but other laws (such as hate speech) do violate free speech because you claim they were not enacted for people's safety.


 * You argue that "'being' free to do something does not and has never meant 'being able to do whatever one pleases'", but I would counter that this is exactly how the definition of "freedom of speech" has been used across Wikipedia. See the articles "freedom of speech" and "Freedom of speech by country" for evidence of this usage.


 * If we got a neutral third opinion, I would be willing to be satisfied with whatever decision he or she made. Would you?--Masebrock (talk) 20:06, 5 December 2018 (UTC)

Your dishonesty is hampering this discussion. Stop intentionally misrepresenting literally everything.

Rights don't exist in a vacuum. You definition does. Furthermore, "speak freely" is itself loaded since "freely" is undefined. You want it to mean "without any legal restriction", but rights exist independently of laws. Moreover, the way you want to use that term makes your definition a tautology. If "free speech" is the ability to speak without legal restrictions, then for there to be 'exceptions' to free speech at all would be free speech can't exist. That is, if "free speech" is the ability to speak without legal restrictions, then the existence of legal restrictions on free speech means free speech doesn't exist at all.

Your second point is still a lie. Stop lying. "Free speech" is the right (not an 'ability) to speech and expression that does not violate the rights of others. If you were approaching this discussion with any honesty, you would stop trying to rephrase this definition to suit your needs.

This isn't "lawyer-speak". Moreover, this is an article about legal 'exceptions'. You've lost this point. Abandon it.

I was speaking specifically within the context of incitement and threats. Both of those non-free speech pieces of speech necessarily cause others to fear for their safety. That isn't to say rights are dependent upon any person's well-being. You're scattered and projecting your own beliefs where they are not warranted.

I'm not looking to write anything about hate speech laws here, so that point is irrelevant. Indeed, other articles about hate speech laws correctly identify such laws as a restriction on free speech.

Again, laws against incitement don't exist because they cause others to fear for their safety. That's the effect they have, but it isn't the reason why such laws are Constitutional in the United States. They're Constitutional because they violate the rights of others, so state (and the federal) governments have no restrictions on themselves to pass such laws. Fundamentally, the Constitution (and the First Amendment, specifically) is a restriction on government that recognizes rights governments cannot violate.

Once again, this article is about free speech in the United States, not free speech as defined by the UN or Germany or Russia or Australia. Your desire to overtly dismiss that concept as it is specifically defined through the US Constitution and centuries of case law only speaks to your ideology on this matter.

Free speech is the human right to speak and express one's self without violating the rights of others. It is not merely (and uselessly) any speech. If it was, we'd just call it any speech.FreeSpeechGuy (talk) 00:11, 6 December 2018 (UTC)


 * The common definition of "free speech", as it is used in the "freedom of speech" and "Freedom of speech by country" pages is "speech without legal restriction". This is what it means to "speak freely". The definition has no exception for legal restrictions based on certain theory of human rights. Which is good, because injecting human rights theory into the definition is highly ideological and not encyclopedic.
 * You say: "If 'free speech' is the ability to speak without legal restrictions, then for there to be 'exceptions' to free speech at all would be free speech can't exist." But this is not so. Free speech could easily exist: all a government would have to do is not pass any laws that restrict speech. That every government chooses to do so, doesn't render the concept of "free speech" meaningless, it just means that every government has chosen to restrict speech.
 * Your human rights-based definition would lead us to say that a government can restrict the legal ability to speak, without actually restricting "free speech". Not only is this confusing, but deciding whether the restrictions is justifiable within a particular human-rights framework is highly ideologically charged.
 * We absolutely should not defer to the U.S. Constitution or U.S. case law, when describing whether the United States has "free speech" or not. This is unencyclopedic, not NPOV, and would never be applied to other countries such as China, ect.
 * I honestly don't see this discussion going anywhere with just us two. So if you'd like to continue this, I'll do a requests for comment to bring in some outside voices.--Masebrock (talk) 01:49, 6 December 2018 (UTC)

"The common definition of "free speech", as it is used in the "freedom of speech" and "Freedom of speech by country" pages is "speech without legal restriction"."

If "free speech" is "speech without legal restrictions", then speech which DOES have legal restrictions is NOT free speech. Ergo, speech such as incitement (restricted), threats (restricted), and fighting words (restricted) are not free speech. Ergo, incitement et al are not restrictions on or exceptions to free speech.

Nothing about rights existing within the context of others rights is 'injecting human rights theory'. You're blathering about nothing. It's an objective fact that there are multiple types of rights within the world and they exist with each other and between individuals.

"But this is not so. Free speech could easily exist: all a government would have to do is not pass any laws that restrict speech." You didn't understand what was said. If "free speech" is defined as the ability to speak without legal restrictions, then any legal restriction necessarily renders "free speech" moot; "free speech" can't exist in a restricted environment if it is inherently defined as something which exists without restrictions. Your objection - that a government would merely need to not pass any laws that restrict speech - entirely misses the fact that the point being made here is specifically about exceptions and how they fit into your definition. That is, if "free speech" is the ability to speak without legal restrictions, and a government does, in fact, have legal restrictions, then that government can not have free speech. And, yet, the US DOES have free speech.

"That every government chooses to do so, doesn't render the concept of "free speech" meaningless..." Just to reiterate where you missed everything being discussed here: A government choosing to place restrictions on speech only renders the concept of "free speech" meaningless if we use your definition of "free speech". Again, if "free speech" is defined as a lack of legal restrictions, then any legal restriction means we are either no longer dealing with "free speech" or the legal entity in question is in violation of free speech. (In the case of 'hate speech' laws, all such legal entities are in violation of free speech, but I digress.)

But I believe you've already ceded the argument with your own citation of other Wikipedia articles. You've specifically claimed that "free speech" is speech without legal restriction. That means speech that DOES have legal restrictions is NOT free speech. This article should either be noted as the misnomer it is or it should be renamed. FreeSpeechGuy (talk) 07:10, 6 December 2018 (UTC)
 * Ah, a simple slip-up of wording on my part. Let me try again. The common definition of "free speech", as it is used across Wikipedia, is the the ability to speak without restriction. This article was clearly intended to treat "free speech" as a state-of-being, not an action itself, otherwise (as you point out) the title would be misnomer. You've made a mountain out of a molehill here.
 * Re human rights: It is not an "objective fact" that human rights exist, and the NPOV demands that we cannot edit Wikipedia in a way that assumes they do.
 * Your argument that "the US DOES have free speech", at least not in the absolute sense, is not the Wikipedia consensus. There's a lot of evidence against this claim, with this very page providing a lot of it.--Masebrock (talk) 07:48, 6 December 2018 (UTC)
 * A third opinion has been requested. I am willing to abide by whatever decision they make. Are you willing do the same?--Masebrock (talk) 07:58, 6 December 2018 (UTC)
 * Pictogram voting comment.png 3O Response: In the absence of definitions of citations, I am inclined to go with the broader understanding of the ability to speak without restriction. I understand the logic that, as Congress can not make a law "abridging the freedom of speech", these 'exceptions' are either unconstitutional or cannot have been part of "the freedom of speech" to begin with.  But I think that kind of overscrupulous language could quickly become pedantic and an obstacle for readers.  I prefer the phrasing of Masebrock's reversion, with "free speech", and find it generally consistent with the body of the article (and a brief overview of related articles).  I think this sets better with plain English and encyclopedic tone, using it as a broad and general term rather than the very specific (yet unspecified) constitutional/legal definition.  The article might benefit from an early section with terminology, and it'd be preferable to work out the material in such a section (or in a sandbox) rather than edit warring in the lead.  (Then again, I think readers could easily navigate to the main articles free speech, freedom of speech in the United States, and First Amendment to the United States Constitution for clarification.)  This is a non-binding third opinion, but I hope it helps. – Reidgreg (talk) 22:25, 6 December 2018 (UTC)

"This article was clearly intended to treat "free speech" as a state-of-being, not an action itself..." Free speech is neither an ability nor an action. It's not even merely speech (but, rather, also expression). Moreover, SCOTUS has extensively ruled for and against defendants depending on whether the issue at hand was speech/expression (which is often protected) or conduct. Brandenburg v Ohio provides the most important example of this in the 20th century.

"Re human rights: It is not an "objective fact" that human rights exist, and the NPOV demands that we cannot edit Wikipedia in a way that assumes they do." Yes, it is. "Free speech" is not something which is defined by government. And, in particular, the underlying theory of free speech in the United States is that it is recognized.

To Reidgreg, Justice Stevens (while still a justice in 1993) has specifically written on "THE freedom of speech". He is quite clear that the phrase has been expanded by case law to include a host of protected forms of communication, including arms bands, parades, artistic expression, and flag burning, amongst other things. That is, "the freedom of speech" refers to protected forms of communication. It does NOT refer to any and all communication (or mere abilities to speak and/or express one's self).

"The amendment has never been understood to protect all oral communication, no matter how unlawful, threatening of vulgar it may be. Thus, it seems doubtful that the word 'speech' was used in its most ordinate sense."

https://digitalcommons.law.yale.edu/ylj/vol102/iss6/1 (pdf)

Justice Stevens goes on to cite that free speech is a fundamental right rather than a mere legal right, as found in past cases. He also draws a routine difference between unprotected and protected speech. The latter - that is, protected speech - is synonymous with "the freedom of speech" as sought by the Founding Fathers and expanded by the Court.FreeSpeechGuy (talk) 05:14, 9 December 2018 (UTC)
 * The standard use across Wikipedia is that "free speech" is defined as the ability to speak without restriction. I understand that this differs from how the term is used in the US legal system. If you think you've really got a case for why Wikipedia should adopt your preferred terminology, I would suggest opening up a Requests for comment to establish consensus. Because you don't have consensus here, not yet.--Masebrock (talk) 05:24, 10 December 2018 (UTC)
 * I hear what you're saying. If you want try it that way, I feel that the article should make the context explicit from the first sentence of the lead.  Something like "Under United States law, exceptions to free speech refers to ... This can be considered a misnomer because ..."  This would preferably be written in a sandbox with input from multiple editors (whether they agree or not), and then put to a carefully worded RfC for additional input and/or to find consensus before potentially adding to the article.  Having a good proposal prepared and concisely stating its benefits helps a great deal with an RfC. – Reidgreg (talk) 19:15, 10 December 2018 (UTC)

, that simply is not true. At no point is "free speech" defined as an ability. Anywhere. The very page you cite opens by defining it as a principle. If you aren't interested in this topic, stop participating. You aren't adding anything useful.

The entire issue is still a misnomer. My preference (which only became available to me recently) is to completely change the name of the article. is currently trolling my efforts (and failing to read the history page where Masebrock specifically suggested I change the title), but you can see in the page history that I would like to change the name to "Unprotected speech in the United States". This reflects that "any speech" and "free speech" are not the same thing (as described in every other Wikipedia article), and it more accurately reflects that this issue is about legal protections (or the lack thereof).FreeSpeechGuy (talk) 10:23, 11 December 2018 (UTC)
 * You made a bold edit to change the name of the article and that change was reverted. The proper course of action now is to start a requested move discussion.  You can follow the directions at WP:RM to do that.  ~ GB fan 11:37, 11 December 2018 (UTC)
 * I would like to clarify, for the record, that at no point have I suggested the title of the page should be changed.--Masebrock (talk) 17:45, 11 December 2018 (UTC)
 * I made the suggestion that the title be changed, not Masebrock. Just to clear the air on that.81.131.25.138 (talk) 02:02, 13 December 2018 (UTC)

The article title should be changed
Free speech is any and all speech which does not violate the rights of others. It is not merely any and all speech. If it was, there would be no reason to specify "free", nor would it be a distinguishable concept in the first place. As such, true threats, fighting words, etc are not exceptions to free speech since each one of those things violates the rights of others. They simply are not free speech at all.

A far, far, far more accurate title for this article would be "Unprotected speech in the United States". This gets around the fact that the current title makes the implicit claim that things like incitement and child pornography are free speech. And since this is an article primarily based around United States law, it also comports with the fact that the First Amendment says Congress can't make laws that violate freedom of speech. We clearly have laws against child pornography and incitement, and those laws clearly do not violate the First Amendment. It stands to (wildly straight-forward) logic that those things do not fall under the umbrella of "free speech".

There isn't a single right anyone can name that allows one person to violate the rights of others. Not one. Why make a weird exception for the right to free speech? — Preceding unsigned comment added by FreeSpeechGuy (talk • contribs) 06:51, 12 May 2019 (UTC)

Seconded. The title is designed to justify calls for censorship. Legally, it's nonsense.67.242.186.84 (talk) 06:11, 30 May 2019 (UTC)
 * This is a rehash of the same discussion we had earlier. I still oppose your changes for all the same reasons.
 * As a comprise, and for clarity's sake, I would support changing the article to something along the lines of Restrictions on freedom of speech in the United States or United States freedom of speech restrictions, since the term "free speech" seems to be causing some ambiguity. Masebrock (talk) 16:24, 9 June 2019 (UTC)
 * This article will never make sense so long as you insist on forcing it into the land of legal make believe. The First Amendment is clear: There can be no laws abridging freedom of speech. Thus, if there are laws which make exceptions, then we only have two choices: either freedom of speech has been routinely abridged via a massive web of SCOTUS decisions OR we aren't talking about freedom of speech. That is, if we take your view that free speech is another way of saying any and all speech, and if the US Constitution says there can be no laws which abridge freedom of speech, then the US Constitution must be saying that there can be no laws which abridge ANY speech. That is literally your view. You've articulated it over and over. If free speech is any and all speech, and if 1A protects any and all speech, then your position is necessarily that federal and state laws are routinely allowed to abridge free speech. Your position necessitates an enormous claim that SCOTUS has sanctioned the violation of the First Amendment. On the other hand, if we change the article title to reflect that there is protected and unprotected speech, the entire article is able to remain intact minus the first paragraph. How does that not make sense to you?FreeSpeechGuy (talk) 04:24, 17 June 2019 (UTC)
 * This is literally the same argument we've already called in a third opinion over. "Free speech" in the U.S. legal sense is not the same thing as "free speech" in the colloquial sense. So we have to make a choice on Wikipedia, as to which one we will use. There's lots of good reasons for using the colloquial definition that I've already laid out in previous discussion. You don't have consensus to insist on using the U.S. legal definition, so I'm going to modify your edits until such a consensus is achieved.Masebrock (talk) 07:00, 17 June 2019 (UTC)
 * Stop edit warring, first of all. You aren't keeping up with this discussion or engaging in/aware of enough nuance to understand what has and hasn't been changed. Furthermore, this specific discussion about a name change only has 1 third party opinion. That opinion concurs with a change. Stop edit warring, and if you want to keep doing it, don't bring it into this different discussion. You've failed to respond to any points made *and* the current count is 2-to-1 for a name change.FreeSpeechGuy (talk) 19:20, 17 June 2019 (UTC)
 * You're repeating the same arguments, nearly verbatim. It's the same question, you've just asked it again in reference to the title rather than the opening paragraph. Addressing your same point over and over is exhausting, and you don't get the green light to edit just because I'm not willing to rehash this.Masebrock (talk) 19:57, 17 June 2019 (UTC)

Request for comment regarding article title and opening introduction

 * The following discussion is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

Does the United States actually have free speech exceptions?Masebrock (talk) 22:23, 17 June 2019 (UTC)

Survey

 * Comment FreeSpeechGuy has proposed that the phrase "free speech exception" in the article title and opening paragraph presents a contradiction and should be removed. In his words: "The First Amendment is clear: There can be no laws abridging freedom of speech. Thus, if there are laws which make exceptions, then we only have two choices: either freedom of speech has been routinely abridged via a massive web of SCOTUS decisions OR we aren't talking about freedom of speech."
 * However, I contend that "free speech" (or "freedom of speech") has a plain English meaning of "the right to speak freely", which is used throughout not just this article, but the rest of Wikipedia. (For example, no one contends that China doesn't have free speech exceptions, despite their constitution also guaranteeing "freedom of speech").
 * So we're left with two competing definitions, one used in the U.S. legal system vs. one used colloquially. My proposal is that since Wikipedia is written in plain English, the legalese definition should not influence the title or be used in the Wikipedia voice. However, it may warrant mention in the article, as an explanation for why the U.S. government simultaneously claims to protect "freedom of speech" while also restricting the freedom to speak.
 * We could really benefit from some outside voices in this debate. Masebrock (talk) 22:23, 17 June 2019 (UTC)
 * It's not true that you use "free speech" to mean the physical ability to speak. You've specified in your edit warring that you mean that it is the physical ability to speak *without fear of prosecution*. That is markedly different from merely saying it is physical speech. What you're actually contending is that free speech is speech that is allowed under law. That would mean that it is not a universal concept that exists regardless of the speaker's physical location, but rather that it is an entirely political concept that changes by country.FreeSpeechGuy (talk) 06:50, 18 June 2019 (UTC)
 * "What you're actually contending is that free speech is speech that is allowed under law." No, I'm not. I don't know how you could possibly come to this conclusion. Masebrock (talk) 07:08, 18 June 2019 (UTC)
 * This is tremendously obvious: By contending that free speech is the physical ability to speak "without fear of prosecution", you've brought the government into the question. Your definition requires the law because, well, who the hell else is suppose to be doing the prosecution? Magic fairies? (Also, "free speech" includes all manner of expression, from physical speech to sign language to writing to photography to flag burning to painting to music to you name it. It's absurd to boil it down to anything physical.) FreeSpeechGuy (talk) 09:07, 15 June 2020 (UTC)


 * Comment - At first glance, this article feels a bit like a legal essay. Has this article ever been taken to AfD on WP:NOTESSAY and WP:SYNTH grounds? NickCT (talk) 16:03, 18 June 2019 (UTC)
 * There's probably a lot of redundancy with Censorship in the United States, I could see a case for it needing to be merged. Masebrock (talk) 16:21, 18 June 2019 (UTC)


 * Yes. Kind of a weirdly phrased RfC, since we're supposed to focus on the content of the article, not on The Truth. Moreover, if there were no such thing as United States free speech exceptions, then the logical result would be to delete this article. So this really ought to be an AfD if anything. All of that said, the answer is yes. There are numerous reliable sources that describe and discuss free speech exceptions. Masebrock FreeSpeechGuy seems to simply refuse to accept the law in this area. It is well known among both lawyers and laypeople that shouting "Fire!" in a crowded theater is not protected by the First Amendment. That exemplifies one of many exceptions. R2 (bleep) 20:10, 18 June 2019 (UTC)
 * has this exactly wrong and embarrassingly so. The phrase "fire in a theater" (which has been tellingly changed to "crowded theater") comes from 1919 dicta. It was never binding law. Moreover, the case it comes from, Schneck v US, was incorrectly decided and overturned; the SCOTUS determined that a man could not distribute anti-draft flyers during WW1 - something which was a violation of his free speech rights, a fact that is now recognized. The case that overturned this was Brandenburg in 1969. Under that ruling, you can falsely shout "fire" in a theater so long as you aren't in violation of the Court's two-pronged test on the matter. I encourage to look up Christopher Hitchens' "Fire" video on YouTube or any of lawyer Ken White's posts that are exactly about this so he can learn about this matter for the very first time. FreeSpeechGuy (talk) 09:07, 15 June 2020 (UTC)
 * Just for clarification, I am in agreement that the United States has free speech exceptions. You may be confusing my position with FreeSpeechGuy's. Masebrock (talk) 23:46, 18 June 2019 (UTC)
 * My apologies. Fixed. R2 (bleep) 17:12, 19 June 2019 (UTC)


 * Move to close RfC per R2, this isn't really a proper RfC question and as worded is an invitation to break WP:NOTAFORUM. Editors' understandings of the First Amendment are totally irrelevant because interpreting the First Amendment is original research. We defer to what reliable sources have written on the subject. signed,Rosguill talk 23:47, 18 June 2019 (UTC)
 * Apologies, this my first RfC. My intention was to ask whether we should use the legal definition of "free speech" or the colloquial one, both of which are used in RS. Masebrock (talk) 00:05, 19 June 2019 (UTC)
 * The article should cover both, in proportion to the availability of reliable sources that use the term in either context. That having been said, I see nothing wrong with the current phrasing of the lead most recently edited by FreeSpeechGuy. I think it lays out the limits and applications of "free speech" quite clearly in a way that explains the legal definition to a broad audience. Although now that we're here, it also seems like this article is arguably a fork of Freedom of speech in the United States, which also addresses exceptions in detail. signed,Rosguill talk 00:46, 19 June 2019 (UTC)

Extended discussion
Masebrock, what is this colloquial definition of free speech that you keep referring to, and what reliable sources support it? R2 (bleep) 17:14, 19 June 2019 (UTC)
 * The colloquial definition, is something along the lines of "the legal right to express one's opinions freely" or "The right of citizens to speak, or otherwise communicate, without fear of harm or prosecution". You can see the colloquial definition being used in examples such as, , . Masebrock (talk) 22:53, 19 June 2019 (UTC)


 * For starters, the only source among those that's reliable is M-W. But in any case, there's no conflict between those descriptions and what you're calling the legal definition. For U.S. legal definitions, Black's Law Dictionary is the definitive source. It defines "freedom of speech" as "The right to express one's thoughts and opinions without governmental restriction, as guaranteed by the First Amendment." That sounds remarkably similar to what you just wrote. I don't see how the existence of certain exceptions to the general principle creates some sort of split between definitions. R2 (bleep) 21:42, 20 June 2019 (UTC)


 * The discussion above is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

New Exception?
I believe that Threatening the President of the United States is an unlisted exception to the freedom of speech as saying, for example, "I am going to kill the president" is illegal under 18 U.S.C. § 871. Just saying that phrase unless in certain contexts (like this one) is enough to get yourself arrested even if you were not actually planning to do so. --Pithon314 (talk) 15:03, 24 September 2019 (UTC)
 * Yes this does seem to be a distinct exception, or at least a special case under the "incitement" umbrella. Perhaps someone with more familiarity to the subject than myself can help clarify the differences between this and typical "incitement law" in the text, if it is added.Masebrock (talk) 04:08, 25 September 2019 (UTC)
 * Rough draft:
 * Threatening the President of the United States
 * Under Title 18 Section 871 of the United States Code it is illegal to knowingly and willfully make "any threat to take the life of, to kidnap, or to inflict bodily harm upon the president of the United States." This also applies to any "President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect." This law is distinct from other forms of true threats because the threatener does not need to have the actual capability to carry out the threat, meaning prisoners can also be charged. --Pithon314 (talk) 03:33, 27 September 2019 (UTC)
 * Looks good to me. Thanks for taking the time with this. Freedom of speech in the United States has a number of other restrictions that aren't listed here as well. I'm not sure what the best course of action is, perhaps ideally the section in Freedom of speech in the United States could be merged with this article, but that could be tricky. Masebrock (talk) 06:55, 27 September 2019 (UTC)
 * I agree that would be a tricky merge, it kind of falls under Censorship in the United States but censorship seems different then exceptions in some ways.--Pithon314 (talk) 15:05, 27 September 2019 (UTC)
 * I agree that would be a tricky merge, it kind of falls under Censorship in the United States but censorship seems different then exceptions in some ways.--Pithon314 (talk) 15:05, 27 September 2019 (UTC)

Stolen Valor?
Do things like stolen valor and impersonating an officer fall under this? MasterHedgehog76 (talk) 05:01, 23 July 2020 (UTC)


 * They fall under the "False statements of fact" section. Habanero-tan (talk) 19:58, 13 March 2022 (UTC)

"Public disclosure of private facts"
Does "public disclosure of private facts" in U.S. tort law qualify as a free speech exception (i.e. private actors publishing or circulating true information about a non-public figure that is not of public concern)? -- CommonKnowledgeCreator (talk) 17:08, 22 September 2020 (UTC)
 * I think it should be included, perhaps under a heading of "invasion of privacy" section that includes all three exceptions: 1. Public disclosure 2. False light 3. Appropriation of likeness. We should also be mention that public disclosure law is determined at the state level, and not every state has it.Masebrock (talk) 21:02, 22 September 2020 (UTC)
 * Agreed. Unfortunately, I'm not a lawyer and I don't have access to any law library that has volumes compiling state tort laws related to public disclosure, false light, or appropriation of likeness. Any thoughts? -- CommonKnowledgeCreator (talk) 12:50, 23 September 2020 (UTC)

Should "True threats" be a category, with "threats against the president" as a subcategory?
Even if the laws for threatening the president, specifically, have slightly different requirements than laws about true threats in general, it seems like "true threats" are one of the categories of exception, and "true threats against the president" are a subcategory of unprotected speech. True threats against people other than the president are unprotected, so that should absolutely be its own category. Virginia v. Black deals with the requirements for true threats, and while Watts v. United States was about speech targeting the president, it established that hyperbolic speech doesn't count as a threat, which applies to all laws against threats.

Addition of dozens of Wikilinks to every section
User CommonKnowledgeCreator who doesn't have a user page (IP editor? If so, not a problem, just not sure, so am unable to ping him or her) has added as many as a dozen "Further reading" links to EACH section of the article. I don't want to cause an edit war with this user by removing all the Wikilinks and then CommonKC adding them back etc. (I'm not suggesting that would happen or making bad faith accusations, just know how these things sometimes are.) More importantly, I see from the history log for the article that CommonKC has added these Wikilinks gradually over time, with care. I don't want to barrel in with a heavy hand as I sometimes do with tag bombing or External Link abuse, as this is a different situation.

The problems here are Wikipedia style per WP:MOS and accuracy.

The style aspect: If all these topics are indeed related to the subject of the article, or are examples of exceptions to free speech in the United States, then they should be incorporated into the content of the article. Lots of things are related to other things, but it is unhelpful to any reader to have to chase down so many Wikilinks. This is especially the case since it isn't clear which are examples and which are related concepts. Also, there are just too many of them!

Regarding accuracy: As CommonKC said in this talk page's prior discussion of "Public disclosure of private facts", CommonKC is not a lawyer (i.e. not an expert) and doesn't have access to a law library. I am not a lawyer either. That is why I am uneasy by making so many additions to this article without discussion on the talk page first. Other editors did this, see sections of this talk page titled "Threatening the President of the United States" and "Stolen Valor". CommonKC did so too in the section "Public disclosure of private facts" and discussed that addition with User:Masebrock. That is what I would like to see CommonKC do more of.--FeralOink (talk) 01:18, 25 July 2022 (UTC)

Military free speech in uniform
The military section should mention that a service member's free speech rights are different depends on if they are in uniform. Military policy is that an active service member should not engage in protests or advocacy while in uniform, but may generally engage in such activities in their civilian clothes. SnappingTurtle (talk) 05:02, 28 July 2022 (UTC)