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I am not very clear on limits of free speech in the U.S.

The question is, can it, and in which cases, be considered illegal to call a person by any other name, but their actual name or pronoun?

For example,

  • would it be legal to call President of the USA a "dumbhead" or another derogatory word?
  • could it be considered illegal for a shopkeeper to call all her customers "ducks"?
  • calling a particular politician "sleazy"?
  • calling somebody by another gender's pronoun?

For all cases, if it makes difference, we assume everyday communication between two people, which can potentially be overheard by others, but is not intentionally meant to be addressed to more than one.

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  • call a person by any other name... Calling people names is literally a bad thing to do...
    – PMF
    Oct 29, 2021 at 13:44

2 Answers 2

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US Free Speech laws are exceptionally broad and, according to Wikipedia, are some of the most liberal in the entire world (I've seen Canadians who, upon realizing American's expectations of what Free Speech means, realize that even Canada Free Speech laws aren't that protective). The TL;DR answer is all four examples are perfectly legal, though not all are socially acceptable.

As a general rule, American Speech laws break speech into three catagories that are listed from least narrow to broadest definition:

  1. Unprotected Speech: Generally this is speech that is not protected by the First Amendment and can be used to show liability in a crime. Note that no specific word or phrase is out and out banned while there is quite a list of speech restrictions, all have some very narrow restrictions placed on them such that the circumstances must be met to consider speech unprotected. Even the classic and oft cited "Shouting 'Fire!' in a Crowded Theater" isn't outright illegal. If there really is a fire in a crowded theater, shouting out the nature of the threat is perfectly legal. While not exhaustive, this list generally holds any speech that incites imminent lawless actions (asking someone to break the law, inciting the mob to violence, fighting words), invoking a "True Threat" (falsely announcing a danger or threat that calls for public action. Dialing 911 to report a non-existent emergency, calling in a bomb threat, threats to inflict harm, etc. all count towards this.) and defamatory statements (Statements which are false and cause damage to the target's reputation.). Obscenities are also found here, but Obscenities are held to be the province of the most local levels of governance in the United States (with exception to Child Porn, at least, but that was specifically carved out by SCOTUS as something that was clearly obscene and the government had a compelling interest to blocking.).

  2. Commercial Speech - Speech that intends to sell a product to a customer. Generally restricted in that the speech must not run against truth in advertisement laws AND certain restrictions on advertising to minors (such as advertising tobacco or alcohol during a commercial break for Spongebob Squarepants or in entertainment geared to Kids.).

  3. Protected Political Speech - The default assumption of all speech made in the United States (You must prove that speech falls in the above two categories during any legal case made against that speech) and protected by the Constitution. It's the broadest and the most expansive of the classes and is so broad, that not speaking is considered protected speech as well. Can also cover non-verbal artistic speech such as paintings or dancing.

Again, in your cases, the first and third examples are clearly discussing politics and the opinion of a voter or other elected official on an elected officer of government and thus is protected. Example 4 is legal but it's acceptability has always been held to for one reason or another but is not illegal (for Cis-gendered, using wrong pronouns can be demeaning as it shows that the individual targeted is behaving like an undesirable member of their sex. Consider the most offensive insult in "The Sandlot" was one boy telling another boy that he "throws [baseballs] like a girl" although the humor of the scene is that the children believe this crosses the line, while an adult would have taken offense to other insults hurdled prior to that one. For Trans individuals, it can be denial of their identity and a sign of disrespect).

Example 2 needs more context... is the buisness owner a crotchety old man who still refuses to say anything truly offensive, but still wants the customer to know he cares for them as much as if they were ducks? Or does the owner work for a company that runs Duck Tours and is calling the customers that because of the company theme?

At either rate, the U.S. is unique among Liberal Democracies in that the U.S. has no "Hate Speech" laws. That is to say that there are no laws criminalizing speech that is offensive to people by protected characteristics. That said, Hate Crimes do exists, which is a charge that can be applied to any crime where it is clear that the victim being targeted for protect characteristics whether they are perceived or otherwise (it doesn't matter if an Anti-Islam mob attacked a Sikh thinking they were Muslim, it still counts. Wrong for the wrong reasons is still wrong.). In this context, slurs may be considered as evidence in and of themselves, but the crime isn't their use in the attack, it's the attack itself.

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  • I was re-reading your answer and was wondering, if you could elaborate a tad more on Obscenities -- from what you wrote, it seems that obscenities can only be considered illegal, if used in Unprotected speech and shown as "liability in crime". Would that be correct? So, calling anyone a dk or fk would in itself would not be illegal, unless it was part of some actual crime?
    – Gnudiff
    Jan 31, 2022 at 20:34
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    @Gnudiff: No. There is no word whose utterance in the United States is and of itself a criminal offense. And I am not sure what your d-words and f-words are intended to be, which would highlight the contextual nature of the words use. Words like "dick" or "fuck" are obscenities but generally aren't used to target a protect characteristic of a person. However, the D-word (slur for a Lesbian) and the F-word (slur for a gay person, usually a man) can be evidence that a crime was motivated by hate, thus a Hate Crime. Merely uttering them in public is not enough.
    – hszmv
    Jun 22, 2022 at 15:48
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Generally speaking, all these examples would be perfectly legal. American speech law starts from the presumption that speech is protected from government punishment, and then asks if it fits into one of several categories of unprotected speech, which are laid out in other answers.

Name-calling generally doesn't fit into any of those categories, so none of your examples would be illegal. The answer might change if the name-calling went far enough to suggest some false assertion of fact about your subject. Calling someone "murderer" or "pedophile" might cross the line into libel, which is unprotected, or it might be punished as "fighting words" if it could be expected to provoke the subject to violence.

Another qualification is that the government has a bit more leeway to regulate speech when it is acting as an employer rather than as the government. So if you were a clerk at the license bureau, the government might be able to require you to use people's preferred names or pronouns; if you refused to do so, you might be subject to employment-related discipline, but not to criminal or civil sanctions.

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