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2.6.06

Freedom of Speech vs the First Amendment

Freedom of speech is a moral principle. The First Amendment (and associated jurisprudence) is one country's current attempt to translate a version of freedom of speech into law. A key difference is that freedom of speech is broader than the First Amendment, since most people would believe that there is some moral claim to freedom of speech in civil society and employment situations (even if they don't believe that claim ought to be enshrined in law), but the First Amendment applies only to actions by the government.

It irritates me the way people tend to conflate the two. Sometimes it happens because someone, feeling that their moral right to free speech has been infringed, assumes that the law will offer them succor. More common, however, is a situation in which someone asserts that their freedom of speech has been infringed by, say, an employer. Then a self-satisfied pedant will point out that the First Amendment doesn't cover that situation, and therefore their free speech has not been infringed. This pedantry misses the point -- the claim at stake is a moral one (perhaps even a moral claim to legal redress), not a legal one.

Supreme Court decisions define the scope of legal protections offered by the First Amendment. But they do not define the moral principle of freedom of speech, except insofar as the Justices make persuasive arguments in their opinions.

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