Introduction
In a constitutional system, speech is presumed lawful unless it is proven unlawful through established legal procedures, and remedies must correspond to that determination. The Constitution does not grant speech rights. It restricts state action. "Congress shall make no law… abridging the freedom of speech." Accordingly, the question is not whether speech is harmful, offensive, or destabilizing, but whether the state has lawfully determined it to be unprotected and has employed a constitutionally appropriate remedy in response.
Proposition 1: Presumption
Speech is presumed lawful until proven otherwise.
This presumption is foundational. Without it, the state may silence first and justify later, converting unresolved allegations into enforceable truth. The Constitution entrusts courts with the power to resolve disputes, not to suppress them. When speech is restrained before falsity or unlawfulness is adjudicated, the rule of law itself is weakened, regardless of who ultimately proves correct. One of the strongest principles in First Amendment jurisprudence is the prohibition on prior restraint.
Courts may:
- punish unlawful speech after proof
- award damages
- issue narrow, post-adjudication remedies
Courts may not:
- forbid speech in advance because it might be unlawful
- silence categories of future expression
- resolve factual disputes by preventing discussion
This principle does not exist to protect liars. It exists to prevent courts from becoming pre-emptive arbiters of truth.
The Supreme Court has repeatedly reaffirmed this presumption in the context of modern communication. In Packingham v. North Carolina (2017), the Court affirmed that social media platforms function as central venues for lawful expression, rejecting the idea that the risk of unwanted online contact justifies broad exclusion from expressive forums. Speculative harm, the Court made clear, cannot substitute for adjudication.
Likewise, in Reno v. ACLU (1997), the Court held that online speech receives full First Amendment protection, rejecting heightened suppression based on fear of exposure or misuse. The decision reinforces the foundational rule that internet speech is presumed lawful absent a recognized constitutional exception.
Proposition 2: Process
The determination that speech is unlawful must be made through adversarial process, with notice, evidence, and findings.
This requirement rejects:
- ex parte silencing
- "credible fear" as a substitute for adjudication
- emotional distress as a proxy for falsity, threat, or illegality
Process is not a technicality. It is the mechanism by which the Constitution distinguishes protected speech from punishable conduct.
Proposition 3: Categorization
Only speech that falls within recognized constitutional exceptions may be restrained, and only to the extent of that exception.
This is where defamation, true threats, and harassment directed to a person properly reside. Critically:
- speech about someone is not the same as speech to someone
- repetition does not transform protected speech into unlawful conduct
- offensiveness does not create a constitutional exception
Harassment law is legitimate when it:
- targets conduct
- stops unwanted direct contact
- prevents credible threats
- addresses stalking behavior
Harassment law may incidentally affect speech when regulating conduct, but it may not be used to suppress public expression as such. It becomes illegitimate when it:
- restrains public speech
- substitutes distress for proof
- blocks future speech about disputed facts
- freezes one narrative before adjudication
Even where some regulation is permitted, the government may not favor one side of a dispute. That means:
- silencing criticism while allowing praise is unconstitutional
- freezing one narrative while another remains public is unconstitutional
- protecting the "more sympathetic" party’s speech is unconstitutional
Courts cannot decide whose story may be told before determining which speech is unlawful.
Proposition 4: Remedy
Remedies must correspond to the nature and scope of the unlawful speech and must not suppress lawful expression.
This is where injunctions most often fail. The problem is not the availability of injunctive relief, but the use of broad, speech-suppressive orders untethered to adjudicated wrongdoing. A lawful system:
- punishes or remedies specific unlawful acts
- does not silence future, hypothetical speech
- does not resolve factual disputes by forbidding discussion
As a general rule, the government may not regulate speech based on:
- what it says
- whom it criticizes
- which viewpoint it expresses
When courts restrict speech because it is:
- upsetting
- embarrassing
- accusatory
- reputation-damaging
they engage in content-based regulation, triggering the highest level of constitutional scrutiny. This matters acutely in harassment and HRO contexts, where speech is often restrained because of its message rather than its mechanics.
When the government regulates speech, it must:
- target only unprotected expression
- do so with precision
- avoid suppressing lawful speech
Orders that prohibit:
- "posting about" a person
- "indirect contact" through public platforms
- speech "likely to reach" the petitioner
almost always fail this test, because they:
- suppress protected speech
- extend far beyond proven unlawful conduct
- chill lawful discussion, reporting, and self-defense
Overbreadth is not a technical defect. It is a constitutional injury.
Summary
The Constitution permits regulation of:
- unwanted direct contact
- threats
- stalking behavior
- conduct that invades personal autonomy
It strongly protects:
- public speech
- criticism
- reporting
- discussion of disputes
- speech addressed to the public at large
Courts collapse this distinction at their peril, particularly when unresolved disputes are converted into speech bans rather than resolved through adjudication and law.