Isabella Carter
Constitutionally protected speech is derived from the First Amendment of the U.S. Constitution, which states that Congress shall make no law...abridging the freedom of speech. The U.S. Supreme Court has struggled to determine what constitutes protected speech, but it is generally understood that all speech is considered constitutionally protected unless it falls within certain exceptions, such as incitement, obscenity, fighting words, offensive speech, and threats. The Court has also held that speech designed to incite violence is not protected, and that the government may restrict speech based on the time, place, and/or manner in which it takes place.
| Characteristics | Values |
|---|---|
| Protected by | First Amendment of the U.S. Constitution |
| Applies to | Direct (words) and symbolic (actions) speech |
| Includes | The right not to speak |
| Does not include | Incitement to violence, obscenity, fighting words, offensive speech, and threats |
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Incitement
Speech that is designed to incite violence is not considered protected speech. The U.S. Supreme Court has held that threats of violence that are designed to place a person or group at risk of bodily harm or death are not protected speech. However, not all threats are considered unprotected speech. If a reasonable person would not believe the threat to be actionable, then the statement does not count as a threat.
The First Amendment protects freedom of speech. This includes the right to articulate opinions and ideas without interference, retaliation or punishment from the government. The term 'speech' is interpreted broadly and includes spoken and written words as well as symbolic speech (e.g. what a person wears, reads, performs, protests, and more).
The First Amendment states that:
> Congress shall make no law...abridging freedom of speech.
The U.S. Supreme Court has often struggled to determine what exactly constitutes protected speech. All speech is considered constitutionally protected unless it falls within several limited exceptions. Under common law, the U.S. Supreme Court has limited this right by deeming certain types of speech to be outside this protection. These include incitement, obscenity, fighting words and offensive speech, and threats.
The Court has upheld laws that reasonably restrict speech on the basis of its time, place and manner. There is no black letter law as to exactly what speech is protected and what speech crosses the line.
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Obscenity
The First Amendment of the U.S. Constitution states that "Congress shall make no law...abridging the freedom of speech". This means that all speech is considered constitutionally protected unless it falls within several limited exceptions. The U.S. Supreme Court has deemed certain types of speech to be outside of this protection, including obscenity.
The government is allowed to restrict speech if it does so based on the time, place, and/or manner in which that speech takes place. For example, speech that is designed to incite violence is not considered protected speech. This includes direct and symbolic speech, such as the right not to salute the flag or for students to wear black armbands to school to protest a war.
The determination of what constitutes protected speech is always a matter of context and the specific facts of the situation. There is no black letter law as to exactly what speech is protected and what speech crosses the line.
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Fighting words and offensive speech
Speech is considered constitutionally protected if it is derived from the First Amendment of the U.S. Constitution, which states that "Congress shall make no law...abridging the freedom of speech". However, the U.S. Supreme Court has limited this right by deeming certain types of speech to be outside this protection. These include fighting words and offensive speech.
The Court has also upheld laws that reasonably restrict speech on the basis of its time, place and manner. For example, students are allowed to wear black armbands to school to protest a war, but they do not have the right to salute the flag.
The determination of whether speech is protected or not is always a matter of context and the specific facts of the situation. There is no black letter law as to exactly what speech is protected and what speech crosses the line.
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Threats
Speech that is protected by the First Amendment of the U.S. Constitution is considered constitutionally protected speech. This includes the right to articulate opinions and ideas without interference, retaliation or punishment from the government. However, there are exceptions to this protection. Threats of violence that are designed to place a person or group at risk of bodily harm or death are not protected speech. The U.S. Supreme Court has deemed certain types of speech to be outside of this protection, including incitement, obscenity, fighting words, offensive speech, and threats.
Not all threats are considered unprotected speech. If a reasonable person would not believe the threat to be actionable, then the statement does not count as a threat. Additionally, threats of social ostracism or politically motivated boycotts are constitutionally protected speech. The government is allowed to restrict speech based on the time, place, and/or manner in which it takes place.
The determination of whether speech is protected or not is always a matter of context and the specific facts of the situation. Speech that is designed to incite violence is not considered protected speech. The First Amendment protects speech even when the ideas put forth are thought to be illogical, offensive, immoral, or hateful. However, this does not mean that individuals may say whatever they wish, wherever they wish.
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Symbolic speech
Constitutionally protected speech is derived from the First Amendment of the U.S. Constitution, which states that "Congress shall make no law...abridging the freedom of speech." This right is not absolute, however, and the U.S. Supreme Court has deemed certain types of speech to be outside of this protection, including incitement, obscenity, fighting words, offensive speech, and threats. The Court has also upheld laws that reasonably restrict speech based on time, place, and manner.
The First Amendment protects symbolic speech even when the ideas expressed are illogical, offensive, immoral, or hateful. However, it is important to note that speech designed to incite violence or place a person or group at risk of bodily harm or death is not considered protected speech. The determination of whether speech is constitutionally protected is always a matter of context and the specific facts of the situation.
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Frequently asked questions
Constitutionally protected speech is derived from the First Amendment of the U.S. Constitution, which states: "Congress shall make no law...abridging the freedom of speech."
Speech that incites violence, obscenity, offensive speech, and threats are not protected.
No, not all threats are considered unprotected speech. If a reasonable person would not believe the threat to be actionable, it does not count as a threat.
Yes, the government is allowed to restrict speech based on the time, place, and/or manner in which the speech takes place.
No, freedom of speech does not mean that individuals can say whatever they want, wherever they want. There are restrictions on speech, and it is also important to consider the context and specific facts of each situation.
