The following guest column was the winner of The Cougar’s annual Constitution Day essay contest. The prompt was: Should your First Amendment right to freedom of speech apply to private domains, like your classroom or workplace? Should there be consequences for using freedom of speech in these settings?
Free speech does not apply to private buildings and businesses. They do not have to uphold the Constitution; they are governed by laws upheld in the Constitution, but because they are not public, or governmental, they can choose whether to endorse First Amendment rights or not.
If neo-Nazis offend a business owner, they can choose to not associate with the people spouting that offense rhetoric. This is called Freedom of Association, and it is the same reason Christian bakers should not be forced to bake wedding cakes for LGBTQAI+ couples.
This is not to say a firm or institution, such as University of Houston, can institute free speech zones or restrict free speech in any way. If the institution receives any funding (even in the form of grants) from the federal government, then it must uphold the Constitution in its entirety.
Once a firm or institution accepts funding from the government, it becomes, in essence, an extension of that government. This is the same reason affirmative action takes place in universities and businesses. If you accept funding, you void your freedom of association, for the same reasons that the county clerk’s office cannot deny you a marriage license based on the clerk’s beliefs of the validity of LGBTQA+ relationships.
Punishments for free speech are dependent on the location of the speech. If it’s in a public place (including a publicly funded institution), there should be no punishment. If it’s in a private institution or on private property, then the punishment can be just requesting the speaker leave.
However, if the protester or speaker blocks entrances or exits or makes it difficult to conduct regularly scheduled events, that ceases to be free speech and becomes trespassing.
A common critique of free speech is the classic “Yelling ‘Fire’ in a crowded theater,” a line touted by those who do not understand where speech ends and where violating rights begins. The problem with yelling fire in a crowded place is not the speech itself, but the resulting violation of the right to life.
The moment you act in violence, and with malice, you lose any protection the Constitution provides. You are committing a crime — a violation of the individuals’ rights to life and liberty. However, only if the mob harms an individual should the original individual be punished; otherwise, no rights have been arbitrarily violated.
