Free speech is often heralded as a fundamental right, with many Americans thinking we can say whatever we want, wherever we want. However, that is not exactly what the First Amendment of our Constitution prescribes. Speech is not afforded absolute protection; there are limits on free expression.
Understanding Free Speech
At its core, free speech refers to the right to express your opinions and ideas without fear of being censored or punished by the government. It encompasses a range of expressions:
● Spoken words
● Written words
● Symbolic acts, such as protests or burning the flag
This right is rooted in the First Amendment, which states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The amendment clearly refers to speech and assembly. Over the years, the interpretation of the language has been expanded through court cases, to include the right:
Not to speak (specifically, the right not to salute the flag).
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”).
Tinker v. Des Moines, 393 U.S. 503 (1969).
To use certain offensive words and phrases to convey political messages.
Cohen v. California, 403 U.S. 15 (1971).
To contribute money (under certain circumstances) to political campaigns.
Buckley v. Valeo, 424 U.S. 1 (1976).
To advertise commercial products and professional services (with some restrictions).
Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
To engage in symbolic speech, (e.g., burning the flag in protest).
Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).
Freedom of speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations, nonprofit organizations, labor unions, and other associations.
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)
The First Amendment and its judicial interpretations reflect the Founding Fathers’ commitment to creating a society where individuals can freely express themselves. But this right only pertains to the relationship between the U.S. government and its people; it does not apply to any interactions between people or companies. Let’s use Twitter/X and Meta to explain. The First Amendment prohibits the government from restricting misinformation or disinformation being spread on the platforms; however, the platforms can stop you from sharing this information and can even ban you for doing so. Why? Because as companies, Twitter/X and Meta have the freedom to limit what you say.
Freedom of speech was recently tested on college campuses across the country as the Pro-Palestinian protests escalated to more than dissemination of ideas and peaceful protests. Public universities, which are in essence government entities, cannot prohibit expressions of ideas merely because others find those ideas offensive or disagreeable. Private universities, on the other hand, can limit freedom of expression.
Types of Speech NOT Protected Under the First Amendment
Despite its broad interpretation, free speech is not unfettered. Even under the First Amendment, the government can restrict certain types of speech, including:
● Incitement to engage in illegal activity
● True threats
● Obscenity and child pornography
● Fighting words
● Words said to incite panic
● Defamation
So abortion opponents can stand in front of clinics and shout their beliefs, but cannot threaten abortion providers. Students can protest peacefully on the campuses of public universities but cannot destroy property. Candidates are free to speak their perspectives but cannot incite illegal action. You can share an opinion of a person or company, but you cannot state an untrue fact that harms their reputation or damages their business.
While you may disagree with another person’s perspective, that perspective is protected. This doesn’t mean what that person said is morally acceptable; they simply have the freedom to say it. Although the words or actions may be hurtful and damaging to the fabric of society, the government protects their ability to say and do them.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.
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