How Free Speech Works

Visual displays, symbolic acts, choice of attire, distribution of religious pamphlets, contributions to political campaigns, and the posting of pornography on the Internet are all eligible for First Amendment protection. In 1943, the Supreme Court ruled that requiring school students to salute the flag denied them their First Amendment rights, and free speech came to include the freedom not to speak, too [source: PBS]. Facebook "Likes" became protected speech in 2013 [source: Kelly].

Free speech, then, is actually freedom of expression. Because the First Amendment is so broad, it is ultimately U.S. courts, and particularly the Supreme Court, that must determine which expressions are and are not protected from government interference [source: Legal Information Institute].

The most widely recognized criterion for determining the constitutionality of any proposed limit comes from Justice Oliver Wendell Holmes Jr. in explaining the majority opinion in 1919's Schenck v. United States[source: Encyclopaedia Britannica]. Charles Schenck had been arrested for distributing material discouraging compliance with the World War I draft, a violation of the 1917 Espionage Act. On appeal, the U.S. Supreme Court decided that national interest in drafting soldiers trumped Schenck's right to free speech, and that the Espionage Act was constitutional. The explanation established a line of reasoning that is still in use a century later: Do "the words create a clear and present danger that they will bring about substantive evils Congress has a right to prevent?" [source: University of Missouri-Kansas City]. Holmes' opinion also included the oft-cited line: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic" [sources: Bill of Rights Institute, University of Missouri-Kansas City].

Still, wartime dissenting speech has been granted protection. During the Vietnam War, a man was arrested for disturbing the peace when he walked through an L.A. courthouse wearing a jacket that read "F*%k the Draft." The court found him to be within his rights, because anyone who saw his jacket could simply look away [source: FindLaw].

Simply stated, determining limits on free speech is about weighing public versus private interests [source: Illinois First Amendment Center]. This typically happens when a person is convicted of breaking a law, and the conviction is appealed on the basis that the law in question violates the right to free speech. The court may then establish a specific limitation if it finds the speech in question doesn't qualify for protection and/or it broke a law the court finds constitutional.

In addition to national security and interests, cases involving issues like incitement of violence, libel and obscenity all have resulted in limits on the right to speak.

In 1972, Marvin Miller, who ran an adult-books business, mailed product brochures to homes at random. A mother whose child saw the adult-themed catalog called the police, and Miller was arrested for violating a California statute prohibiting distribution of "obscene" material. Miller appealed, claiming the statute violated his right to free speech [source: Laws.com].

Historically, the Supreme Court has resisted defining expressions as obscene, lest it fall into the role of legislating morality [source: Illinois First Amendment Center]. Yet in Miller v. California, the 1973 Supreme Court found that Miller's speech did not qualify for protection, not necessarily because it was obscene, but because states had the right to regulate the distribution of pornography, and because Miller's speech exposed a protected class of people, children, to inappropriate content [source: Laws.com]. (The case was a landmark one because it also specified a new, three-prong test for defining what is and is not obscene.)

On the other hand, in 2004, the Supreme Court found for the pornographers. Ashcroft v. the American Civil Liberties Union addressed the Child Online Protection Act, which required pornography publishers to restrict underage access. The court found the act to be unconstitutional on several grounds. First, it was not specific enough in its definition of inappropriate material, lending the government too much discretion in judging content; and its infringement on free speech went beyond what was necessary, since other approaches, like parental controls, could accomplish the goal of protecting children without limiting anyone's liberty [source: Oyez Project].

Digital communication has triggered a new generation of free-speech questions. The 2013 case, Bland v. Roberts, that extended speech to include clicking a Facebook "like" button involved two men who worked for a sheriff running for office; they were fired for liking (and commenting) on his opponent's Facebook page. They appealed their case on First Amendment grounds and won [source: Kelly]. In 2010, the Supreme Court determined that online videos depicting animal cruelty are protected as free speech, even though the acts themselves are against the law [source: Vicini].

That the "expression" of an illegal act may itself be legal underscores the complexities faced by the court in determining the limits of free speech.

Court-established criteria make it difficult to limit free speech in America. Libel, for instance, is extraordinarily difficult to establish. For the publication of lies about a public figure to be deemed libelous, there must be proof the publisher knew the information was incorrect and published it anyway [source: Oyez Project].

It's the difficulty in limiting content based on incitement of violence (fighting words), that now tends to draw the greatest scrutiny. In America, unlike in many other Western democracies, hate speech is protected by law. The general American view is that the freedom to speak trumps the preference to not be insulted – or, in the words of Harvard Law professor Noah Feldman, "If your feelings are hurt, then that's your problem" [source: NPR]. On the other hand, in most European countries speech that "incites racial hatred," in particular Holocaust denial, is a criminal act [source: NPR]. In the wake of the violent response to "Innocence of Muslims" France prohibited groups from publicly protesting the video.

Still, while insulting speech falls under First Amendment protection, speech determined to be "fighting words" does not. But how is that determined?

For the content of an expression to "incite violence," that violence must be both likely and imminent[source: NPR]. The 1969 case Brandenburg v. Ohio is a landmark here. Clarence Brandenburg said to a crowd at an Ohio Ku Klux Klan rally, "We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken" [source: University of Missouri-Kansas City]. Brandenburg was arrested for advocating violence. On appeal, the Supreme Court decided Brandenburg was within his rights [source: University of Missouri-Kansas City]. That one might reasonably predict violence as a possible outcome is not enough, and neither the probability nor the timing of the "revengeance" [sic] could be inferred from the speaker's words [source: NPR].

By these criteria, Nakoula's video "Innocence of Muslims" arguably did not rise to the level of fighting words. But people in other countries find it hard to understand why the U.S. would allow such a video to be shown.

"Many people around the world believe certain lines should not be crossed in public — and it's not just insulting religion, the state or the national culture. Many countries also have strong individual defamation laws," wrote Turkish professor Zeynep Tufekci in a CNN article.

Whether the U.S. definition of "inciting violence" will have to expand to accommodate the nature of digital communication remains to be seen. Speech that happens in America reaches the entire world in seconds, and the predictability of a violent response to particular expressions may eventually trump the right to speak [source: Tufekci]. For now, though, America won't hold Nakoula liable for the results of his cinematic expression. It won't even pull it from YouTube.