First Amendment

Who is censoring or punishing your speech? <ul> <li>[[It's the government.]]</li> <li>[[I don't think it's the government.]]</li> </ul> <img src="http://lnott.neocities.org/govt.jpg">

Are you sure your speech isn't being censored or punished by a government actor? Public school officials are considered government actors. So are courts, law enforcement officials, public housing authorities, and government-created corporations like Amtrak. <ul> <li>Now that I think about it: [[It's the government.]]</li> <li>[[It's really not the government.]]</li> </ul> <img src="http://lnott.neocities.org/govt%20action.jpg">

Your speech is not protected by the First Amendment, since the First Amendment only limits government actors, not private actors. However, there may be other sources of law (e.g., contract law, tort law or state employment statutes) that would allow you to seek relief in court. <img src="http://lnott.neocities.org/no%20speech.jpg">

What did you say (or write, or post, or publish)? <div class="bubbleleft">[[Something threatening.]]</div> <div class="bubbleright">[[Something defamatory.]]</div> <div class="bubbleleft">[[Something obscene.]]</div> <div class="bubbleright">[[Something that led to lawless disorder and violence.]]</div> <div class="bubbleleft">[[Viscious insults.]]</div> <div class="bubbleright">[[Child pornography.]]</div> <div class="bubbleleft">[[I blackmailed someone.]]</div> <div class="bubbleright">[[I convinced someone to commit a crime.]]</div> <div class="bubbleleft">[[I lied under oath.]]</div> <div class="bubbleright">[[None of the above.]]</div>

Was it a "true threat"--a serious expression of intent to commit an act of unlawful violence? Or were you just exaggerating? True threats are not protected by the First Amendment, but the law on what constitutes a true threat is <a href="http://www.newseuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/personal-public-expression-overview/true-threats/">somewhat unclear</a>. <a href="http://caselaw.findlaw.com/us-supreme-court/537/465.html">According to the Supreme Court</a>, a statement can be a true threat even if the speaker had no intent of actually carrying out the threat--what matters is that the speaker intended to place his victim in <i>fear</i> of bodily harm or death. So is a threat a true threat if the speaker subjectively intended to intimidate or threaten others? Or is it a true threat if the recipient of the threat reasonably believed it was a threat? <a href="http://www.newseuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/personal-public-expression-overview/true-threats/">Different courts have different ways of approaching this assessment</a>, so the answer to this question might depend on where you are. Bottom line: If you made a true threat, your speech is not protected. But if you were just exaggerating (and the person you were talking to knew that): [[Your speech may be protected by the First Amendment.]] <img src="http://lnott.neocities.org/liberty%20stick.jpg">

<a href="http://www.newseuminstitute.org/first-amendment-center/topics/freedom-of-the-press/libel-defamation/">Defamation refers to false statements of fact that harm another’s reputation.</a> Libel generally refers to written defamation, while slander refers to oral defamation. Who did you defame? <ul> <li>[[A public figure, like a politician, celebrity or business leader.]]</li> <li>[[A private figure.]]</li> </ul> <img src="http://lnott.neocities.org/media.jpg">

Are you sure it was obscene? The <a href="http://www.newseuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/adult-entertainment/pornography-obscenity/">legal definition of obscenity</a> follows these guidelines set up by the Supreme Court: <ul style="color:white"> <li>Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest</li> <li>Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law </li> <li>Whether the work, taken as whole, lacks serious literary, artistic, political, or scientific value</li> </ul> Depictions of nudity, and many depictions of sex, do not qualify as obscene. Obscenity is not protected by the First Amendment. But if your expression does not fit the legal definition of obscenity: [[Your speech may be protected by the First Amendment.]] <img src="http://lnott.neocities.org/liberty%20stick.jpg">

The First Amendment does not protect speech that leads to <a href="http://www.newseuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/personal-public-expression-overview/incitement-to-imminent-lawless-action/">imminent lawless action</a>. This kind of speech has to be directed towareds a specific person or group, it has to be a direct call to commit <i>immediate</i> lawless action, and there must be an expectation that the speech will in fact lead to lawless action. But if your statement was more generalized (i.e., "people should orise up one day"): [[Your speech may be protected by the First Amendment.]] <img src="http://lnott.neocities.org/liberty%20stick.jpg">

The First Amendment does not protect <a href"http://www.newseuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/personal-public-expression-overview/fighting-words/">fighting words</a>. Thes are words <a href="https://supreme.justia.com/cases/federal/us/315/568/case.html">"that by their very utterance inflict injury or tend to incite an immediate breach of the peace."</a> This is a very narrow definition. Since 1942, Court hasn't found the "fighting words" doctrine applicable in any of the hate speech cases that have come before it. The "fighting words" doctrine generally doesn't apply to words that cause offense or emotional pain. If that's all you caused: [[Your speech may be protected by the First Amendment.]] <img src="http://lnott.neocities.org/liberty%20stick.jpg">

Child pornography is not protected by the First Amendment. <img src="http://lnott.neocities.org/law%20speech.jpg">

Blackmail attempts are not protected by the First Amendment. <img src="http://lnott.neocities.org/law%20speech.jpg">

Solicitations to commit crimes are not protected by the First Amendment. <img src="http://lnott.neocities.org/law%20speech.jpg">

Perjury is not protected by the First Amendment. <img src="http://lnott.neocities.org/law%20speech.jpg">

[[Your speech may be protected by the First Amendment.]] <img src="http://lnott.neocities.org/liberty%20stick.jpg">

But wait! <ul> <li>[[Are you a government employee, and is your speech being censored or punished by your employer?]]</li> <li>[[Are you a public school student, and is your speech being censored or punished by your school?]]</li> <li>[[I am neither of these things.]]</li> </ul>

That can be <a href="http://www.newseuminstitute.org/wp-content/uploads/2014/09/fac_firstreport_public-employees-free-speech.pdf"situation>complicated</a>. But essentially, if you’re a government employee, and your speech is related to your official duties, then the government can discipline you for your speech just as any employer can. But if you were speaking as a private citizen on a matter of public concern, your speech is protected by the First Amendment. So: Were you speaking pursuant to your official duties? <ul> <li>[[Yes.]]</li> <li>[[No.]]</li> </ul>

Public school students do not lose their constitutional rights when they walk through the schoolhouse doors. But two legal principles limit their rights. First, as the Supreme Court has said, minors do not possess the same level of constitutional rights as adults. Second, the government generally has greater power to dictate policy when it acts in certain capacities, such as educator, employer or jailer. A school's interest in educating students in a safe environment can sometimes outweigh freedom of speech. Did you say something at school or at a school-sponsored activity that substantially disrupted the school environment or invaded the rights of others? <ul> <li>[[I did.]]</li> <li>[[I didn't say anything that substantially disrupted the school environment or invaded the rights of others.]]</li> <li>[[I did say something disruptive and/or invasive to the rights of others--but I wasn't at school!]]</li> </ul>

Your speech is protected by the First Amendment. (But remember that this game is for educational and entertainment purposes. If you're planning on filing a lawsuit against the government actor that censored or punished your speech, please contact an attorney in your area). <img src="http://lnott.neocities.org/freedom.jpg">

Sorry. The First Amendment does not protect your speech. <img src="http://lnott.neocities.org/no%20speech.jpg">

You've indicated that you were speaking as a private citizen, not as an employee. Were you speaking on a matter of public concern? <ul> <li>[[Yup.]]</li> <li>[[Not really.]]</li> </ul>

Does your interest in commenting on this matter of public concern outweigh your employer's interest in regulating your speech? <ul> <li>[[Absolutely.]]</li> <li>[[Probably not.]]</li> </ul>

Sorry. The First Amendment does not protect your speech. <img src="http://lnott.neocities.org/no%20speech.jpg">

Was what you said a substantial factor in whatever penalty (termination, suspension, etc.) you received from your employer? <ul> <li>[[I believe that it was.]]</li> <li>[[To be honest, it was probably more because I was a terrible employee.]]</li> </ul>

Sorry. The First Amendment does not protect your speech. <img src="http://lnott.neocities.org/no%20speech.jpg">

Unless your employer can prove that they would have taken the same action in the absence of your speech: Your speech is protected by the First Amendment. <img src="http://lnott.neocities.org/freedom.jpg">

Sorry. The First Amendment does not protect your speech. <img src="http://lnott.neocities.org/no%20speech.jpg">

Your speech is protected by the First Amendment. <img src="http://lnott.neocities.org/freedom.jpg">

Whether your school can <a href=http://www.newseuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/k-12-public-school-student-expression/underground-papers-off-campus-speech/>punish you for off-campus speech</a> (such as something posted to Facebook) is a complicated and unsettled legal question. The <a href="http://caselaw.findlaw.com/us-2nd-circuit/1466801.html">Second</a>, <a href="http://openjurist.org/425/f2d/10/scoville-v-board">Seventh</a>, and <a href="http://media.ca8.uscourts.gov/opndir/12/10/121727P.pdf">Eighth Circuits</a> have found that schools can punish off-campus speech if it was "reasonably foreseeable" that the speech in question would reach the school community. Similarly, the <a href="http://www.ca4.uscourts.gov/Opinions/Published/101098.P.pdf">Fourth Circuit has found</a> that a school can sanction your off-campus speach if there is a "sufficient nexus" between the speech and the school (when a student created a website ridiculing other students, the Fourth Circuit concluded that she knew that a negative dialogue would take place that would disrupt the school). Other Circuits haven't established clear guidelines for when schools can discipline off-campus speech. You can use the cases and articles linked here as a jumping off point for your own research. (We're here to provide information--but we're not going to write your law review article for you). <img src="http://lnott.neocities.org/desk.jpg">

If you said or published something false about a <i>public</i> figure (such as a politician, celebrity, or business leader), they will have to prove that you acted with actual malice (knowledge of falsity or reckless disregard for the truth) in order to succeed in a lawsuit against you. If they can't prove it: [[Your speech may be protected by the First Amendment.]] <img src="http://lnott.neocities.org/liberty%20stick.jpg">

If you said something false and harmed the reputation of a <i>private</i> figure, and that person can prove that you acted negligently, the First Amendment will not protect you from their lawsuit. But if they can't prove it: [[Your speech may be protected by the First Amendment.]] <img src="http://lnott.neocities.org/liberty%20stick.jpg">