Legal and Biblical Perspectives
by Gary Goff
I have heard people (especially angry people) say something along the lines of, “I’m exercising my right of free speech,” which they interpret to mean, “I can say whatever I want, whenever I want, with impunity.” That sentiment is simply incorrect, both from a legal standpoint and, especially, from a biblical standpoint.
Gary Goff is an elder for the 12th Street Church of Christ in Shallowater, Texas. As a retired District Attorney for the Texas 286th Judicial District, he is well-qualified to write on this topic.
There is a very precious legal right of free speech embodied in the First Amendment to the Constitution of the United States, and similar declarations appear in the legal framework of many nations. However, the concept of free speech is far from absolute and limitations are numerous. I will focus on recognized limitations to free speech under U.S. law, but I am certain similar limitations exist in other countries.
The first step in understanding legal limitations on free speech is to consider exactly what right of free speech is granted. The First Amendment to the Constitution states, “Congress shall make no law…abridging the freedom of speech.” At first glance, that seems pretty broad, but there is a significant limitation. The prohibition of abridging free speech is specific to Congress. The original prohibition applied only to the federal government. Later enactments apply the First Amendment to state and local governments, but the bottom line is: the prohibition on abridging free speech applies ONLY to government actions and does NOT apply to actions by individuals or by nongovernmental organizations.
Examples of this distinction arise in the employer/employee setting. May an employer place a restriction on what an employee may say? The answer is “Yes.” The distinction is easily understood and accepted in work-related situations such as revealing trade secrets or breaching confidentiality. When the situation is not work-related and involves the employee’s ‘own’ time, the distinction is often misunderstood. It is difficult for nongovernmental employees to understand that the Constitution provides them ZERO freedom of speech protection from abridgment by their bosses.
One well-known example was the 2004 firing of Lynne Gobbell from her nongovernmental job in Alabama because she was displaying a Kerry for President decal on the bumper of her personal vehicle. Her boss was a Bush supporter and terminated her employment. Ms. Gobbell protested to no avail and eventually went to work for the Kerry campaign.
Many nongovernmental employers routinely monitor employees’ social media activity, and employees have been fired for personal remarks made on Twitter, Facebook, and other social media platforms. There is no legal recourse for these significant limitations on one’s right of free speech. Whether one agrees with the concept or not, the alternatives are simple: abide by company rules or find another job.
In our modern culture climate, most employers seeking new employees will almost certainly include a review of social media in the hiring process, and may decline to hire an applicant because of past postings. Additionally, employees may be legally disciplined or fired because of ‘offensive’ social media postings written years before being hired.
Even when a governmental agency is the actor, the right of free speech is subject to numerous recognized limitations. These limitations fall quite naturally into two categories: What is said and Where it is said.
What is said
The government can, and does, censor obscenity. Most famously, the comedian George Carlin was arrested in 1972 for a monologue featuring seven words that were prohibited from use on radio and television. Although his own arrest was eventually dismissed, various radio stations began airing a version of the monologue. One such broadcasting agency called Pacifica Foundation was cited by the Federal Communications Commission for airing this ‘indecent’ material. Pacifica objected, arguing that the citation was an impermissible government abridgment of free speech in violation of the First Amendment. The lawsuit ultimately wound its way to the United States Supreme Court which held that government does have the right to limit certain speech.
Another category of speech which government can limit is often referred to as words inciting violence. This category has been very much in news of late because of the riot at the U.S. Capitol on January 6, 2021. Potentially, the most serious form of this category of speech is found in 18 U.S. Code, Section 2383 which criminalizes speech that “incites, sets on foot, assists, or engages in any rebellion or insurrection against the United States or the laws thereof, or gives aid or comfort thereto.” The penalty can be severe: up to ten years in prison. However, prosecution under Section 2383 is difficult because the courts have held that specific intent to lead to imminent violence must be proven. That sets a high bar for prosecutors, but does not alter the fact that there are federal and state laws prohibiting speech inciting violence. Christians should not be using or condoning such language.
One final example of abridgment of a category of speech that governments routinely practice is in the realm of disclosing secret or sensitive material. The argument that one is merely exercising his or her right to free speech is unlikely to prevail when accused of providing scientific or military secrets to a foreign entity.
Where it is said
Where it is said represents a broad selection of speech that may be perfectly within one’s free speech rights – except when spoken in the wrong setting. The iconic example is that yelling, “Fire,” is of no consequence unless one yells it in a crowded theater where there is no fire. That speaker would be held criminally responsible for injuries sustained in a resulting panic.
Courts are governmental bodies, and limitations on free speech exist in the judicial system. A simple lie in another setting might not have legal consequences, but becomes perjury during sworn testimony. Relating a story told to an attorney by a client in violation of attorney-client privilege could result in court sanctions as well as loss of the attorney’s bar license. Inducing perjury, relaying testimony to a future witness who has been told to remain outside the courtroom, or talking to a sequestered juror about the case at trial are all examples of limitations on free speech in a court setting.
Similarly, public schools have been fertile areas for questions concerning governments’ abridgement of free speech. While students do not lose constitutionally bestowed rights when they enter school, those rights have been held to be restricted. Public school officials have considerable leeway when it comes to curtailing speech deemed inappropriate or disruptive.
In recent years, some public colleges and universities have established designated free speech zones, and have punitively sanctioned or dismissed students who were outside those specified zones when expressing opinions and information other students might consider offensive.
Other designated places or special circumstances exist where governmental abridgement of free speech occurs, but these should suffice to remind us that free speech rights are far from absolute, and that content and location of speech is routinely regulated by governmental organizations.
The notion that there are legal limitations on the right of free speech may have come as a surprise to a few, and certain nuances of those numerous limitations may have been news to more than a few. The concept of biblical limitations on the ‘right to free speech’ should not be any surprise even to the casual Bible reader. It should be abundantly clear that many, if not most, of the legal limitations discussed above would likewise be biblical limitations on one’s speech, even if the biblical language differs, e.g., ‘perjury’ is encompassed in the prohibition against ‘bearing false witness’ (Exodus 20:16; Matthew 19:18).
All biblical quotations are from the English Standard Version Bible, 2001 (ESV), unless otherwise noted. Other versions cited are Complete Jewish Bible, 1998 (CJB), The Message, 2018 (MSG), New International Version, 2011 (NIV), New King James Version, 1982 (NKJV), and Revised Standard Version, 1971 (RSV).
In the legal limitation analysis, many limitations were easily divided into What is said and Where it is said. That analysis is not initially helpful in the biblical analysis, although some time and place circumstances do deserve attention. The reason Where it is said is unhelpful as a major category because God is concerned with the thoughts and intents as much as with the overt action. See, e.g., anger and lust in the heart can equate to murder and adultery, respectively (Matthew 5:21-30). By that measure, Where it is said loses significance – one could violate biblical limitations on free speech by thinking evil speech without the words ever leaving the mouth.
Biblical limitations on free speech can best be divided into a different pair of considerations: negative speech that is condemned and positive speech that is mandated and encouraged. I realize positive speech is not technically enumerating limitations on free speech, but I believe looking at speech from both directions gives a fuller and fairer perspective. What follows is by no means an exhaustive list of all Bible references to negative and positive speech, but hopefully it will provide some guidance and a desire for further study.
One logical starting place for a discussion of biblical limitations on free speech is to look at God’s ancient priorities. After the declaration of His supremacy and the demand that Israel have no other gods, God’s Second Commandment to Israel reads, “You shall not take the name of the Lord your God in vain, for the Lord will not hold him guiltless who takes his name in vain” (Exodus 20:7). The concept undoubtedly includes more than simple profanity, e.g., using it to bolster false testimony (Leviticus 19:22) or frivolous oaths (Matthew 5:33-37), and it certainly includes the prohibition of the flippant use of God’s name so prevalent in our modern culture.
The Ten Commandments include a second abridgement of free speech. The Eighth Commandment is, “You shall not bear false witness against your neighbor” (Exodus 20:16). The prohibition on its face appears to be aimed at what we call ‘perjury,’ which would typically involve making a false accusation under oath or giving false testimony in a judicial setting. The actual meaning is much broader and includes deception and lying outside the formality of oaths. See, e.g., R. Bailey, College Press NIV Commentary, Exodus, p. 225 (“In short, to tell a lie, whether under oath or not, was prohibited).”
Deception as a significant limitation on free speech is a common theme in the Bible. Examples are numerous and blunt. Two of seven abominations to God are forms of deception: There are six things the Lord hates, seven that are an abomination to him… a lying tongue… a false witness who breathes out lies…. (Psalm 6:16-19). See, also, You destroy those who speak lies; the Lord abhors the bloodthirsty and deceitful man (Psalm 5:6); Keep your tongue from evil and your lips from speaking deceit (Psalm 34:13; 1 Peter 3:10); “No one who practices deceit shall dwell in my house; no one who utters lies shall continue before my eyes” (Psalm 101:7). Jesus called the devil a liar and the father of lies (John 8:44) and listed deceit as an evil thing that comes from within one’s being (Mark 7:22-23). In the final verses of John’s heavenly vision, those left standing outside include “everyone who loves and practices falsehood” (Revelation 22:15).
Jeremiah provides clear imagery for the dangerous nature of deception: They bend their tongue like a bow; falsehood and not truth has grown strong in the land…. Their tongue is a deadly arrow; it speaks deceitfully; with the mouth each speaks peace to his neighbor, but in his heart he plans an ambush for him (Jeremiah 9:3a, 8).
Some of the most common excuses (reasons) given for lying include an attempt to avoid responsibility or punishment for one’s actions, an attempt to make oneself look better in the eyes of another, and simply for the pleasure some derive from deceiving others. The use of verbal deception is one of the sinful acts we witness most often. Perhaps that is why it is condemned so often in Scripture.
The specific category of deception called ‘slander’ is repeatedly condemned in harsh terms as well. ‘Slander’ is an untrue oral statement intended to defame another person. A written statement would be ‘libel’. Slander earned a separate slot on Jesus’ list of evil things that arise from within the person (Mark 7:22-23), as well as making several lists of evil actions set out by Paul (I Corinthians 6:9-10; 2 Corinthians 12:20; Ephesians 4:31; Colossians 3:8; I Timothy 6:4; 2 Timothy 3:2-4) and by the Peter (1 Peter 2:1).
Deceit in its various forms is the most common biblical abridgement of free speech, but several other types of speech are also condemned. For example, A worthless person, a wicked man, goes about with crooked speech, winks with his eyes, signals with his feet, points with his finger, with perverted heart desires evil, continually sowing discord (Proverbs 6:12-14). Crooked appears in other translations as perverse (ASV) and corrupt (NIV). In the immediate context, the word may convey speech that is sneaky or manipulative, accompanied by body language that undermines the face value of what is being said. All of us, unfortunately, have witnessed situations where the actual words spoken are innocent, but the wink or the eye roll show the words to be insincere flattery or to have the intent to mock the unsuspecting target.
The psalmist identifies a similar form of deceit: Let the lying lips be mute, which speak insolently against the righteous in pride and contempt (Psalm 31:18). Again, the actual word spoken may be innocent, but the attitude of the speaker is far from innocent. “Yes, sir,” can be a respectful response to someone, or it can be dripping with insolence, contempt, and sarcasm.
In his letter to Ephesus, Paul specifies another forbidden type of speech: Let no corrupting talk come out of your mouths, but only such as is good for building up, as fits the occasion, that it may give grace to those who hear (Ephesians 4:29). Corrupting is also translated as evil (RSV), unwholesome (NIV), and harmful (CJB). In context, it describes a broad range of speech, not necessarily evil or perverse on its face, but detrimental to the hearer.
Gossip is another form of speech condemned as sinful in Scripture (Romans 1:21; 2 Corinthians 12:20). The words translated as gossip in these passages are forms of a word related to whispering. The image is compelling. Too many have been victimized by the insidious spread of half-truths, rumors, and lies. Gossip is easily recognized and condemned when the intent is openly malicious and the content is obviously false. However, gossip may even be more damaging when the content – even if true – is an invasion of privacy and the purported intent is “just stating the facts to keep everyone informed.”
There are other situations when the right to freely speak is abridged in the Bible. Christians are repeatedly instructed to avoid saying things that are divisive. This would include quarreling (Romans 13:13; 1 Corinthians 1:11; 1 Timothy 2:8); quarrels about words (1 Timothy 6:4); speaking evil (Titus 3:2); and grumbling or disputing (Philippians 2:14). The first century church faced division that arose because of differences of opinion as to what foods were acceptable (Romans 14), preferences for certain spiritual gifts (1 Corinthians 12-14), ethnic differences (Colossians 3:11), and groupings according to socio-economic status (1 Corinthians 11). We aren’t told if divisive speech was the basis for any of these problems, but it almost certainly played a part.
Even though it seems relatively unimportant compared to serious abridgements like lying and gossip, under certain circumstances free speech should simply be limited by length. When words are many, transgression is not lacking, but whoever restrains his lips is prudent (Proverbs 10:19). Jesus cautioned, “And when you pray, do not heap up empty phrases as the Gentiles do, for they think they will be heard for their many words” (Matthew 6:7). Paul’s special instructions concerning the public worship assembly included limiting the number of speakers and the length of speeches so that all things should be done decently and in order (I Corinthians 14:40).
It is clear that numerous biblical limitations to free speech exist. The problems caused by ignoring such abridgements threaten the church in every culture, but the dangers of lies, gossip, and divisive quarreling are magnified in a culture suffused with social media. It is easy for divisive speech to be spewed into cyberspace with anonymity and seeds of discord and division sown.
The biblical limitation on free speech, the “don’ts“ of speaking, are better understood when counterbalanced with biblical “dos,” of speaking as one should. The concept of free speech conveys the idea that speech is unlimited and uncontrolled. The longest Bible passage dealing with speech (James 3:1-12) sets forth as ultimately impossible the task every person has in trying to control one’s own speech. James calls the tongue a fire, a world of unrighteousness (James 3:6), a restless evil, full of deadly poison (James 3:8). That places upon us the daily challenge to control our speech – to use restraint, to bridle our tongues, to willingly forfeit the freedom to say what we want, whenever we want.
Numerous descriptive words were employed by Bible writers to show what controlled speech should sound like. Speech praised in the Bible should be with sweetness (Proverbs 16:21), judicious (Proverbs 16:23), gracious (Proverbs 22:11, Colossians 4:6), pure (Zephaniah 3:9), intelligible (1 Corinthians 14:9), truthful (2 Corinthians 6:7), seasoned with salt (Colossians 4:6), sound (Titus 2:8), and as one who speaks the oracles of God (1 Peter 4:11).
We have biblical examples of the good news of Jesus Christ being proclaimed boldly (Acts 9:27, 28). Questions about the gospel message should be answered with gentleness and respect (1 Peter 3:15). On those occasions when words of criticism or correction are necessary, they should be spoken with gentleness (2 Timothy 2:25) and with complete patience and teaching (2 Timothy 4:2).
Ultimately, speaking as God would have us speak requires that we do so with love. If I speak with the tongues of men and angels, but have not love, I am a noisy gong or a clanging cymbal (1 Corinthians 13:1).
Any concept that the Christian has a right to free speech and is free to say anything, anywhere, with impunity, is not supported in Scripture. Not only is the Christian’s speech subject to limits, and is to be rid of negative characteristics, we are instructed to mold our speech in a positive manner. We will never be able to control our tongue completely, but making improvements in our speech is an indication of spiritual maturation. Rather, speaking the truth in love, we are to grow up in every way into him who is the head, into Christ (Ephesians 4:15).
Finally, the most severe biblical limitation on any perceived right of free speech is NO speech. The special limitation of silence is uniquely described in the Bible as both positive and negative. Trapped between the Red Sea and Pharaoh’s approaching army, the Israelites decried their deliverance from slavery in Egypt and ignored the miracles they had witnessed. Moses told them, “The Lord will fight for you, and you have only to be silent” (Exodus 14:14). Other versions render the instruction more forcefully: “The Lord will fight for you, and you shall hold your peace” (NKJV). Silence was bluntly imposed. That contrasts sharply with the familiar encouragement to a peaceful silence: “Be still, and know that I am God. I will be exalted among the nations; I will be exalted in the earth” (Psalm 46:10). Instead of a ‘right’ of free speech, we are offered the ‘right’ of free silence to contemplate the greatness and goodness of our God!
Roy Davison devotes himself to the gospel in Belgium, as well as being a part-time translator. He is the creator of the Old Paths websites (http://oldpaths.com).