What Speech Is Protected Under the First Amendment?

The First Amendment protects political speech and symbolic speech under strict scrutiny judicial review and commercial speech under intermediate scrutiny. Freedom of speech allows people to express their opinions in a public forum without government censorship. Constitutional rights of protected expression apply to government actors, and individuals can file a civil rights claim to get an injunction for prior restraint violations. The government can have time and place restrictions, and exceptions to free speech include fighting words, true threats, obscenity, and defamation.

This article provides an overview of free speech rights. For more information and legal representation, talk to a civil rights attorney.

Rights Included in the First Amendment

The First Amendment to the U.S. Constitution says that Congress (or the government more generally) shall make no law prohibiting or limiting:

• Freedom of speech
• Freedom of the press
• Peaceful assembly
• Petitioning the government

Freedom of speech is foundational to liberal democracy. It allows people to express their opinions and have free public discussions. Free speech rights also let people speak out against the government and hold public officials accountable. Note that the First Amendment’s protections apply to federal and state governments, not private companies or employers.

Free speech rights have some limits. “For example, the government can impose reasonable time, place, and manner restrictions. You can hold a protest between 10 a.m. and 3 p.m. if you have a permit, but you can’t do it at 2 a.m. in front of the governor’s mansion and wake up the entire neighborhood,” says Jeffrey Lewis, a free speech attorney and founder of Jeff Lewis Law in Rolling Hills Estates, California.

“As long as these restrictions are content-neutral, meaning they don’t take a side in the debate or dictate what should be said, the government has plenty of latitude to impose restrictions.”

Such time, place, and manner limitations must be narrowly tailored and content-neutral, leaving people with alternative venues to express themselves. Your free speech can also be limited when it affects other people’s freedoms.

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Types of Protected Speech Under the First Amendment

Speech includes spoken words as well as written and symbolic forms, such as burning a flag, wearing a protest pin, or even a silent protest.

Political Speech

The strongest speech protections are for political speech, which is any communication on political issues, public officials, or government policy.

Any government restriction based on the content or viewpoint of political speech must pass strict scrutiny. Under strict scrutiny, a court must determine whether a restriction on speech is:

• Narrowly tailored
• Backed by a compelling government interest
• Takes the least restrictive means

The strict scrutiny test sets a very high bar for the government to limit the fundamental right of free speech.

Commercial Speech

Commercial speech is speech that promotes a business or commerce. It is generally protected but subject to intermediate scrutiny, which is less stringent than strict scrutiny.

Under intermediate scrutiny, the government can regulate commercial speech when it can demonstrate:

1. A substantial government interest in regulating commercial speech
2. The regulation directly advances the government interest
3. The regulations are not more extensive than necessary

The government can impose reasonable time, place, and manner restrictions. You can hold a protest between 10 a.m. and 3 p.m. if you have a permit, but you can’t do it at 2 a.m. in front of the governor’s mansion and wake up the entire neighborhood.

Limitations and Exceptions to Protected Speech Under the First Amendment

The U.S. Supreme Court has identified several exceptions to free speech. These limitations relate to concerns about safety, harm to others, and the protection of children. Categories of unprotected speech include:

• Fighting words
• Incitement to imminent lawless action
• Defamation (libel or slander)
• Obscenity
• Child pornography

Hate speech generally isn’t exempt from First Amendment protections unless it amounts to fighting words or true threats.

Fighting Words and True Threats

The government has a compelling interest in controlling violence. A series of landmark U.S. Supreme Court decisions has identified limits to free speech based on the government interest in controlling violence:

• Chaplinsky v. New Hampshire (1942). The Court held that fighting words, or statements likely to produce an immediate breach of the peace, are not protected speech.
• Watts v. United States (1969). An 18-year-old spoke out protesting the Vietnam draft. Watts said if the government made him carry a rifle, the man in his sights would be President Johnson. Watts was arrested and convicted for threatening the president. The Court found in favor of Watts, holding that the statement was political hyperbole rather than a true threat.
• Brandenburg v. Ohio (1969). Police had arrested members of the Ku Klux Klan for burning crosses, displaying guns, and criticizing the government. The Court found there was a difference between abstract discussions of violence and inciting violent action. It ruled that the government cannot restrict inflammatory speech unless it is directed to incite imminent lawless action and likely to produce such action.

Defamation and Fraud

False statements of fact that cause harm are not protected speech. In New York Times v. Sullivan (1964), the Court held that false statements that cause damage to a person’s reputation can lead to civil liability or criminal charges. However, there is a higher bar for public figures, requiring actual malice.

If you make a false statement about another person with reckless disregard for the truth, they can sue you for defamation, seeking damages for harm to their reputation. False advertising and deceptive business practices are also not protected under free speech laws.

Obscenity

Obscene expression is not protected speech. There is a three-part test, called the Miller test from the 1973 case Miller v. California, for determining if a work is obscene:

1. An average person, using contemporary community standards, would find that the work appeals to prurient interests
2. The work depicts patently offensive sexual conduct as defined under relevant state law
3. The work lacks serious artistic, literary, political, or scientific value

Laws defining sexual conduct can vary by state, and what is considered obscene in one area may not be in another depending on community standards.

Child Pornography

Child pornography is not protected and does not have to undergo the Miller test for obscenity. The government already has a compelling interest in protecting children and preventing exploitation and child sexual abuse.

The Role of the Courts in Interpreting First Amendment Rights

While the text of the First Amendment has not changed since its ratification in 1791, its scope and meaning have evolved through the rulings of federal courts, most notably those of the U.S. Supreme Court.

The Court may overrule prior decisions or establish new tests for evaluating the constitutionality of federal and state laws. Though free speech rights have generally broadened over time, they could retract based on the Supreme Court’s evolving majority view.

Below is a selection of important Supreme Court free speech cases:

• Speech of Public Employees. In Pickering v. Board of Education (1968), a public school teacher was fired after writing a letter to the newspaper criticizing the local board of education. The Court ruled that the public school teacher had the right to free speech on matters of public concern.
• Student Free Speech. In Tinker v. Des Moines Independent Community School District (1969), the Court ruled that students in public schools have free speech protections. However, schools can limit speech if it creates substantial disruptions that interfere with school discipline or the rights of others.
• Symbolic Speech. In Texas v. Johnson (1989), a protester outside the 1984 Republican National Convention burned an American flag. The Court held the protester’s burning of the American flag is protected symbolic speech.
• Political Spending. In Citizens United v. Federal Election Commission (2010), the Court ruled free speech rights applied to corporations. Independent political spending does not present a threat of corruption if it is not formally coordinating with a candidate or political party.

Protecting Your Free Speech Rights

Government officials may try to limit the speech of groups or individuals it disagrees with. It is up to individuals to challenge unfair laws and protect their free speech rights. Talk to a local civil rights attorney about your legal options and how you can protect your freedoms.