As reactions to the University of Idaho homicides show, free speech isn’t absolute

Social media can be called a bastion of free speech, but often people ignore the law and say whatever they want, causing real harm in the process, writes guest columnist Rebecca Tallent.

January 18, 2023 4:15 am
Flowers and candles left for a makeshift memorial sit near police tape at the site of a quadruple murder

Flowers and candles left for a makeshift memorial sit near police tape at the site of a quadruple murder on Jan. 3, 2023, in Moscow, Idaho. A suspect has been arrested and charged with murder of four University of Idaho students. (David Ryder/Getty Images)

The First Amendment says we have the right to free speech, right?

While the First Amendment says Congress shall make no law abridging the right of free speech, there is no such restriction on the U.S. Supreme Court. 

Both Congress and the U.S. Supreme Court have placed certain limitations on what people can and cannot say, especially in public forums. Long gone are the days of people standing on a soapbox in a public square being allowed to say whatever they like. 

In 1939, the U.S. Supreme Court ruled in Hague vs. C.I.O., free speech in a public place has been limited because the court said the government has the right to control the time, place and manner of speech in a public forum. But, the court added, the government can only do so if there is a good reason and reasonable regulations are in place. 

It begs the question: Has the internet become our new public forum? Maybe. Congress passed Section 230 (part of the Communications Decency Act of 1996) which protects internet providers from liability, but not the person making the speech.

Another limitation is someone making a “true threat,” or a statement directed toward a specific person and meant to frighten or intimidate another person and make them believe that they will be seriously harmed by the speaker or by someone acting on behalf of the speaker (Watts v. U.S., 1969).

Other restrictions to free speech mean people cannot libel or slander (defame) someone, use speech which would harm others (the “clear and present danger” or “shouting fire in a crowded theatre” Schenck v. U.S., 1919), or using hate speech to encourage violence (Brandenburg v. Ohio, 1969).

Why bring up this subject now?

Social media is sometimes called a bastion of free speech, but often people ignore the laws and say whatever they want. This often causes harm – either physically, economically, socially or emotionally – on another person or people. The case of four murdered college student in Moscow and the collateral damage created by it is a prime example. 

Students working at the Argonaut student paper have been harassed by internet trolls and social media stalkers. Students generally have a significant online footprint, so it is relatively easy to find them. From there, the stalkers and trolls can make life miserable for the students who are just trying to do their reporting and editing jobs of telling the truth about what is happening. 

What these trolls are doing by demanding the students report rumor and inuendo could be construed as a true threat and a form of fighting words, but it could also be argued they are violating other restrictions such as found in the Hague ruling; the problem is the perpetrators are usually anonymous and using an online forum instead of a public park.

Perhaps the most damaging cases being seen are the trolls and stalkers do not like what the police are saying, so they make up their own scenarios and accuse innocent people. 

The case of Rebecca Scofield is an illustration. While Ashley Guillard, a Texas woman who claims to solve crimes using tarot cards using TikTok as her forum, may have the right to consider who she thinks might have perpetrated the crime, to call out and name someone to millions of TikTok viewers, a person who is not being investigated nor has any association with the students, can be construed as libel or slander in addition to a true threat. 

Any journalist who has taken media law knows to prove libel or slander you must be able to prove damage has been caused. In her Dec. 21 federal lawsuit, Scofield said she has been threatened by Guillard’s followers, she fears for her children’s safety and her professional reputation is damaged by Guillard’s statements. 

Paraphrasing a Moscow resident, who used much more colorful and profane language, people seem to have “lost the plot” when it comes to spewing things online. It points up the fact most Americans strongly believe they have an absolute right to free speech.

What people do not realize is no speech is absolute, and there are limitations to everything, including freedom of speech.


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Rebecca Tallent
Rebecca Tallent

An award winning journalist and public relations professional, Rebecca "Becky" Tallent was a journalism faculty member at the University of Idaho for 13 years before her retirement in 2019. Tallent earned her BA and M.Ed. degrees in journalism from the University of Central Oklahoma and her Educational Doctorate in Mass Communications from Oklahoma State University. She is of Cherokee descent and is a member of the Indigenous Journalists Association and the Society of Professional Journalists. She and her husband, Roger Saunders, live in Moscow, Idaho, with their two cats.