For purposes of the First Amendment, free speech is the right to speak without being subject to government restrictions, reprisals, or penalties.

What has CEI done to promote free speech?

CEI has defended the free speech rights of businesses, consumers, broadcasters, employers, writers, and non-union employees. 

In A.B. Coker v. Foti, CEI is challenging state laws implementing the $246 billion Master Settlement Agreement, which require tobacco manufacturers to either join a national settlement that requires them not lobby against a tobacco cartel (or engage in speech such as outdoor advertising), or be penalized by having to make escrow payments and comply with burdensome and financially risky state regulations.

CEI challenged restrictions on truthful labeling of alcoholic beverages, which prevent manufacturers from letting consumers know that moderate consumption of alcohol has not only risks, but also benefits, such as reduced risk of heart disease.  (Its court challenge was dismissed on a procedural technicality, which does not bar future challenges.  CEI also repeatedly filed commentsadministrative agency opposing the speech restrictions). with an

CEI has criticized FCC regulations that restrict what broadcasters can say and the content of their programming in comments with the FCC.

CEI also provided assistance to the Individual Rights Foundation (IRF) in writing an amicus brief and amicus letter in support of Warner Brothers in Lyle v. Warner Brothers Television Productions (2006), in which an employee attempted to sue Warner Brothers and its sitcom writers for hundreds of thousands of dollars for “sexual harassment” based on off-color jokes the writers told amongst themselves in writing the famous TV sitcom Friends.  (The California Supreme Court subsequently ruled unanimously in favor of Warner Brothers, reversing a state appeals court ruling against it).  A CEI attorney helped write the IRF briefs, contributed case citations and ideas to Warner Brothers’ own briefs, and helped solicit amicus briefs in support of Warner Brothers from additional amici like the Center for Individual Rights and FIRE.

CEI joined an amicus brief filed on behalf of non-union teachers, successfully urging the Supreme Court to uphold a law protecting their right not have a union use their compelled contributions for political purposes without their consent, in Davenport v. Washington Education Association (2007).

CEI staff attorneys also write law review articles about free speech violations, in areas ranging from commercial speech to education law.

 Can you give me some examples of censorship in violation of the First Amendment?

The most obvious example is when the government throws you in jail or fines you for your speech.  An unduly lengthy investigation for engaging in speech can also violate the First Amendment, as a federal appeals court observed in White v. Lee (2000), since that chills speech through the continuing specter of punishment.

Another common example, and the most frequent form of censorship today, is lawsuits over speech.  The classic example is when a newspaper is sued for running an advertisement that criticizes a public figure or politician.  The Supreme Court observed in New York Times v. Sullivan (1964) that when a court awards damages for speech to a public figure for defamation, the court’s involvement makes that damage award a government restriction on speech, requiring that defamation be defined narrowly so as not to chill truthful speech.   Similarly, in Hustler Magazine v. Falwell (1988), the Supreme Court overturned a damage award for “intentional infliction of emotional distress” obtained by a famous televangelist against a magazine in a tort lawsuit, making clear that damage awards are subject to First Amendment limits.

The most trendy free speech violations now occur in the name of  “civil rights” and preventing “discrimination.”  When citizens criticize a planned housing development, convincing zoning authorities to delay it, a developer may turn around and sues them for “discrimination,” under the theory that the housing project would be inhabited disproportionately by members of a minority group, so the criticism of it had a discriminatory effect.  In Affordable Housing Development Corporation  v. Fresno, a federal appeals court held that such speech was protected by the First Amendment, regardless of the critics’ allegedly discriminatory motives.  Citizens have frequently been investigated for federal officials for “fair housing” violations for criticizing housing developments for recovering drug addicts, who are considered “disabled” by the Fair Housing Act.  That occurred in White v. Lee, which held that federal civil rights officials violated the First Amendment by investigating citizens for opposing a housing project.  Civil-rights agencies, by contrast, claim that such speech is just unprotected “verbal acts of discrimination,” or that it can be banned because of a “compelling government interest” in banning discrimination.

Are there kinds of speech that are not protected by the First Amendment?

Yes, there are four categories of speech that have historically been considered unprotected: defamation (libel and slander), obscenity, fighting words, and incitement of unlawful action.  All of these categories have been narrowed by the Supreme Court in the 20th Century to prevent chilling public debate.

More controversially, the Supreme Court also claims to have the power to uphold restrictions on speech despite the First Amendment when doing so is no broader than necessary to promote a “compelling government interest.”

This is controversial because “one of the purposes” of free speech is to speak out about, and against, government policies, and to advocate change or reform, even though that indeed “may undercut a given government's policy on some issue.”  Such speech inherently undermines “compelling government interests” in the eyes of those who support such policies.

Moreover, what is a “compelling interest” is a basically standardless notion.  The Supreme Court admitted in Waters v. Churchill (1994) that it has never come up with a general test for what is a compelling interest, allowing the court to make up such interests on a case-by-case basis.

Supreme Court Justice Anthony Kennedy criticized the idea that speech can be restricted based on its content just to promote a “compelling interest” in Simon & Schuster, Inc. v. New York State Crime Victims Board (1991), but the idea unfortunately seems to be accepted by most of the justices.  CEI attorneys have also criticized courts for accepting a vast array of government policies as “compelling government interests,” even when the interests are trivial and doing so opens the door to the government meddling deeply in people’s private lives.

What about private restrictions on speech?  Don’t they violate the First Amendment?

No.  Most provisions of the Constitution, including the First Amendment, only apply to “state action” (that is, government restrictions), as the Supreme Court emphasized in Hudgens v. NLRB (1976).  Thus, a businessman does not violate the First Amendment when he fires a Nazi, a Communist, or a Klansman.

Refusing to associate with someone because they said something hateful to you is not a free speech violation, but rather, can be an exercise of your own freedom of association, which often protects your right not to associate with people who have distasteful views.  The Nazis were held to have a First Amendment right to march through Skokie, Illinois, without being blocked by the government.  But all of us have the right to avoid any association with Nazis, and surely a private employer should be able to fire any Nazi who works for it.

Indeed, First Amendment has sometimes been held to protect private acts of exclusion based on speech.  Examples include Saint Patrick’s Day Parade organizers’ right to exclude a contingent that sought to promote a gay-pride message; a California gay pride parade’s right to exclude an anti-gay group that called itself “Normal People”; and a Seattle newspaper’s right to fire a reporter who engaged in partisan political activity that made the paper appear less objective.  In these cases, First Amendment rights overrode overly broad state antidiscrimination statutes.

Private refusals to sanction speech are not subject to the First Amendment.  That makes sense because private acts of disassociation do not threaten the free exchange of ideas the same way as censorship by the government, which is much more powerful and can deprive speakers of their property and liberty.