Beyond the Breath: Free Speech - What It Is and What It Isn't

This podcast episode provides a comprehensive exploration of the First Amendment, with a particular focus on the intricate landscape of free speech. The host, Heather Hester, articulates the significance of this constitutional provision by reciting its text, which guarantees citizens the right to express their thoughts without governmental interference. However, the discussion quickly evolves into a nuanced examination of the complexities surrounding free speech, particularly the boundaries that exist between protected and unprotected speech. Heather emphasizes that while individuals have the right to express themselves, they are not shielded from the consequences of their words, especially in contexts governed by societal norms and workplace regulations.

As the episode progresses, Heather details specific categories of speech that are not afforded protection under the First Amendment, such as incitement to violence and obscenity, referencing landmark Supreme Court cases to illustrate the evolving interpretation of these concepts. Heather's insights into contemporary issues, including cancel culture, social media moderation, and anti-protest legislation, provide a current context to the discussion, prompting listeners to reflect on their own roles within these debates. The speaker advocates for a thoughtful and responsible approach to speech, urging individuals to harness their voices for positive change and to engage in constructive dialogues.

Ultimately, the episode serves as a clarion call to action, encouraging listeners to not only exercise their right to free speech but to do so with an awareness of the ethical implications that accompany this freedom. It underscores the importance of using one's voice to foster understanding and compassion, thus reinforcing the idea that speech is not merely a right but a vital tool for societal progress.

Takeaways:

• The First Amendment encompasses four fundamental freedoms: religion, speech, press, and assembly.
• While freedom of speech is protected, it does not shield individuals from accountability for their words.
• Certain categories of speech, such as incitement to violence and true threats, are not protected under the First Amendment.
• The distinction between being canceled and being censored is crucial to understanding free speech rights.
• Private companies can set their own standards for speech, which is separate from government regulation.
• Understanding the nuances of free speech enables us to be more effective advocates for justice and connection.

Links for further reading and clarification:

Banned terminology

Banned books

ACLU Guide to Free Speech

National Constitution Center

Cornell Legal Info: Freedom of Speech

Podcast rec: What the Constitution Means to Me

Connect with Heather:

Join the Kind Space on Patreon

Give a copy of Heather's book,

Episode Transcript

(01:41):
Hi friends.
Welcome back to beyond the Breath.
I'm Heather Hester and I am sograteful you're here.
I have a quick announcementbefore we get into today's episode.
I am so excited to share thatin the next few weeks I will be reintroducing

(02:02):
this podcast under a new name,More human, More kind.
A lot has gone into thisdecision which I will share with
you over time, but the mostimportant thing for you to know right
now is that you will remainconnected to the entire backlog of
Just Breathe parenting yourLGBTQ teen episodes.

(02:26):
Which means you will not needto go searching for this podcast
as long as you are subscribedto or follow the show.
So your homework, or perhapseven right now, hit pause and then
hit that subscribe or followbutton so you don't miss any episodes.

(02:51):
Today we're diving into parttwo of our four part series on the
First Amendment.
And this episode is all aboutthe freedom of speech, what it protects,
what it doesn't, and how wecan think about our voices as powerful
tools for compassion and connection.

(03:11):
As always, this space isrooted in gentleness, curiosity and
truth.
So let's get into it.
So I first want to start rightat the source.
What does the First Amendment say?
And I brought this up lastweek in our episode one when we were

(03:31):
talking about a free press.
But I want to say it again.
Again, the First Amendmentsays, quote, congress shall make
no law respecting anestablishment of religion, or prohibiting
the free exercise thereof, orabridging the freedom of speech or
of the press, or the right ofthe people peaceably to assemble

(03:54):
and petition the governmentfor a redress of grievances.
This First Amendment is reallyfour powerful freedoms or statements.
One freedom of religion andthe separation of church and state
2 freedom of speech 3 freepress and 4 the right and freedom

(04:17):
to peacefully protest the government.
So again, last week we talkedabout the importance of a free press.
Today we are lookingspecifically at free speech.
Congress shall make no lawabridging the freedom of speech.
That's it.
One short line.

(04:38):
But that one short line holdsso much power in practice.
This means that the governmentat any level can't punish you or
limit your right to expressyourself, whether that's through
speaking, writing, protesting,or even symbolic acts like wearing

(05:00):
an armband or burning a flag.
But, and this is so, so, soimportant, it doesn't mean you can
say anything without consequences.
Freedom of speech does notmean freedom from accountability,

(05:21):
especially from employers,private companies, or your community.
And it doesn't give protectionfor all types of speech.
There are limits.
And we're going to talk aboutthis right now.
So what's not protected?
Let's talk about this first.

(05:42):
First, there are categories ofspeech that the courts have ruled
are not protected by by theFirst Amendment.
These include first andforemost, and we talked about this
one a little bit last week,incitement to violence, like, for
instance, calling for harm orillegal action, especially in a way

(06:07):
that's likely to happen.
If you're curious tounderstand more, this was really
clarified in the 1969 caseBrandenburg vs Ohio.
It has become ever morenuanced in recent years, and certain
leaders have used dog whistlesor terms that seem innocuous but

(06:33):
stand for something that onlya certain group of people understand
and that's used to activatethem in a negative way or to incite
violence.
Another category of speechthat is not protected by the First
Amendment are actual true threats.
Speech that seriouslythreatens another person's safety.

(06:57):
That one simple and to the point.
The third is obscenity, andthis one's tricky.
It's been defined specificallythrough a case called Miller vs.
California.
And I think this is the mostdirect one and easiest one to perhaps
understand.
Miller vs.
California was initiated inresponse to Marvin Miller's actions

(07:22):
in 1971 when he conducted amass mailing campaign advertising
adult materials.
So the Supreme Court ruledthat obscene materials are not protected
by the First Amendment.
And then the court establisheda three pronged standard to determine

(07:43):
obscenity.
Essentially, what thisdecision does is it grants the states
greater authority to regulateobscene material, allowing them to
base judgments on localcommunity standards rather than a
single national standard.
The next category that is notprotected by the First Amendment

(08:05):
is defamation, like slander or libel.
These can all harm a person'sreputation through false statements,
and then finally, perjury,blackmail, or fraud.
Speech that is used to commita crime.
So there are real limits tofree speech, especially when harm

(08:28):
or danger or falsehoods are involved.
So what is protected then?
Well, this is really, reallyhard because this gets into, what
if it's really ugly speech?
What if it's really hurtful speech?

(08:50):
Speech that is offensive,controversial, or even hateful is
usually protected as long asit doesn't cross into violence or
threats.
So, yes, obviously there is afine nuanced line there, but that's
really.
This is really important tounderstand because this includes

(09:14):
political speech, protest,satire, unpopular opinions, symbolic
expression, like, forinstance, kneeling during the national
anthem or wearing protest clothing.
Even hate speech, which isincredibly painful to witness or

(09:37):
experience, is generallyallowed unless it meets the criteria
for violence or threat.
Now, just because it's alloweddoesn't mean we condone it.
The First Amendment isn'tabout protecting comfortable speech.

(09:58):
It's about preventing thegovernment from deciding who gets
to speak.
So why does this all matter,especially for those of us who care
about justice and kindness and connection?
It matters because knowing howspeech is protected helps us to be

(10:21):
better advocates and betterlisteners and better responders.
When we know what's allowedand we know what's harmful, that
knowledge gives us a lot ofclarity and power.
We can use our voices touplift, to defend, to inspire.

(10:46):
While understanding the linebetween free speech and harmful speech.
We can choose to respondinstead of react.
And we can teach others,especially our kids, that speech
is both a right and a responsibility.

(11:06):
So let's talk about how thishas shown up in the world over the
past decade or so.
I'm sure right now, or even asI've been speaking, you've been thinking
about maybe one, two, threethings that you've either read in
the news or have happened toyou personally or that you've just
heard that have made you angryor sad or upset.

(11:33):
So let's just talk about acouple of these and talk about why
they are good or bad, why theyare allowed or not allowed, why they
would be considered freespeech or not free speech.
The first is when NFL playerColin Kaepernick took a knee during

(11:56):
the national anthem to protestracial injustice.
Remember that?
It sparked absolute insanity.
But from a constitutionalperspective, it was protected symbolic
speech.
The government didn't andcouldn't stop him.

(12:20):
But he did get private backlash.
There were team decisions thatwere not good, and those are very,
very separate from FirstAmendment protections.
What about when it comes tosocial media?
Another common misconceptionwhen people are banned from social

(12:43):
media platforms is that theyoften cry out free speech.
They're upset about their freespeech being infringed, but what
they're not thinking about andwhat they're not realizing is that
those are private companies.
They set their own policies.
The First Amendment applies togovernment censorship, not private

(13:06):
moderation.
This is why it was a big dealwhen Facebook recently changed its
moderation standards.
Even though it may feel likeit, Facebook and X are not government
platforms.
So they can create whateverrules they wish and we can choose

(13:27):
how we respond.
So while the First Amendmentprotects free speech from government
interference, there are a fewmore very recent events that have
raised concerns aboutpotential overreach and the really
delicate balance betweensecurity and civil liberties.
So let's look at just a fewExamples here.

(13:51):
The first, and I brought thisone up last week because it has to
do with press access.
But I think it is worth notingagain because this has continued
to be something worth payingattention to.
The Trump administration facedlegal challenges after barring the
ap, the Associated Press,their journalists from White House

(14:14):
events.
Citing disagreements overterminology, specifically the AP's
refusal to call the Gulf ofMexico the Gulf of America.
A federal court ruled thatthis exclusion violated First Amendment
protections, emphasizing thatthe government cannot discriminate

(14:35):
against journalism based ontheir viewpoints.
Now, the administration hasappealed this decision, which has
sparked debates about pressfreedom and government transparency.
It is a dangerous and slipperyslope when the government chooses
which journalists and outletsare allowed, quote, unquote, allowed

(14:57):
to report.
The next really currentexample is anti protest legislation
that has begun to come through.
So since essentially sinceTrump was inaugurated, there has
been a surge of anti protestlegislation across various states,

(15:21):
with bills introducing severepenalties for demonstrators, particularly
those involved in proteststhat go against this administration's
agenda.
Critics, including civilrights organizations, argue that
these measures aim to suppressdissent and could have a chilling

(15:42):
effect on free expression and assembly.
So this one, actually, I justwant to break in here for a moment
and also note that this is twopieces of the First Amendment right.
This goes into the ability toprotest pieces and to express disagreement

(16:02):
with the government.
So pay attention to that as well.
So one of the examples is thefederal Safe and Secure Transportation
of America Energy act, whichproposes up to 20 years in prison
and major fines forindividuals disrupting pipeline activities.

(16:24):
Critics argue that the vaguelanguage in these bills heightened
the risk of misuse and posethe threat to First Amendment rights
by potentially suppressingdissent and peaceful assembly.
So keep an eye on anythingthat comes up in the news or across
your feeds about any kind ofanti protest legislation and see

(16:48):
what you can pick out of those.
The next one is one of Trump'sexecutive orders on language censorship
in federal agencies.
Now, some this is somethingthat has not only affected federal
agencies, it has begun toaffect a lot of different public

(17:13):
and private businesses acrossthe board of all sizes.
And it's something that I willgo into in great detail later right
after the inauguration.
One of the very firstexecutive orders that Trump signed
was one mandating that federalagencies remove programs and content

(17:37):
related to diversity, equity,inclusion, dei.
This order included banningspecific terminologies associated
with race, gender and socialjustice, aiming to promote traditional
values centered on God, familyand freedom.
While the administrationasserts that this move is intended

(18:00):
to eliminate divisive, quote,unquote, woke culture, opponents
contend that it constitutesinstitutes government censorship
infringing upon free speech byrestricting the use of certain words
and limiting discussions onimportant social issues within federal
institution.
I will link a partial list ofthese terms in the show notes and

(18:24):
I We will actually continue tohave conversations and discussion
on this because this issomething that is trickling down
in a lot of different ways andit's affecting free speech in many,
many different ways.
So I bring this up today.

(18:45):
I'm sure that you have seen itcome across your feeds, but I want
you to pay attention to theway in which it's being shared, the
way it's being reported, andsee if you can begin to be discerning
in the way that you look atthe information and understand what's

(19:08):
being shared.
The next one is one that'sbeen going on for probably the closer
part of a decade, and that isBook bans and libraries.
The American Libraryassociation reported a significant
number of book challenges andbans in 2024 alone, with over 70%

(19:33):
originating from organizedgroups and elected officials.
Most notably, books addressingLGBTQ themes and racial issues have
been targeted, which of courseraises concerns about censorship
and the restriction of diverseperspectives and educational settings.

(19:57):
So these are just a fewexamples that highlight the ongoing
tension around preserving thefundamental right to free speech.
They serve as a reminder ofthe importance of vigilance and advocacy
and upholding ourconstitutional freedoms.

(20:18):
Okay, so now we're going totalk about something that often gets
tangled up in conversationsabout free speech, and that is cancel
culture.
I know, I know this mayactivate you in some way, but it
is so important to talk aboutthis and to be able to discern between

(20:38):
being canceled and being censored.
You've probably heard peoplesay things like, I'm being canceled.
What about my free speech?
Well, here's the important distinction.
Being canceled isn't the sameas being censored.
Censorship is about thegovernment limiting or punishing

(21:01):
speech.
Cancel culture, whether youlove the term or hate it, is more
about social consequences.
It's the collective reactionof a community or a workplace or
an audience in response tosomething someone said or someone
did.

(21:21):
Sometimes these consequencesare warranted, like when someone
uses their platform to spreadhate, mis and disinformation, or
harmful rhetoric.
And sometimes the pushback canbe disproportionate or unkind.
That's real, too.

(21:42):
But in either case, theperson's First Amendment rights have
not been violated.
They're still free to speak.
What they're not free from iscriticism or people choosing not
to support them anymore.
Here's the key.
Free speech means you can say something.

(22:04):
It doesn't mean people have toagree with you, and it doesn't mean
people owe you a platform.
This is where we can reallylean into deeper questions.
Are we responding withfairness and compassion?
Are we making space for peopleto learn and to grow?

(22:28):
Are we holding peopleaccountable in ways that are constructive,
not punitive?
So maybe instead of thinkingin terms of canceling, we can think
in terms of calling in,calling in honesty, calling in care,

(22:51):
and calling in and respondingwith healthy boundaries.
Because our goal isn't just towin debates.
It's to create spaces where wecan all be more human and more kind.
So where does this leave us?

(23:13):
Free speech is a cornerstoneof democracy.
It allows us to speak our truths.
It allows us to push back.
It allows us to create change.
But it also challenges us tolisten well, to think before we speak,

(23:33):
and to use our voices with care.
It teaches us to really learnhow to be discerning.
Just because we can saysomething doesn't always mean we
should.
So I want to leave you with this.
How will you use your voice?

(23:55):
Not just because it'sprotected, but because it's sacred.
Thank you for spending timewith me today.
Be kind to yourself, speakwith intention, and stay curious
until next time.