Jonah Patel
The First Amendment to the United States Constitution protects freedom of speech. It states that Congress shall make no law...abridging the freedom of speech. This means that the government may not jail, fine, or impose civil liability on people or organisations based on what they say or write, except in exceptional circumstances. The First Amendment also protects symbolic expression, such as displaying flags, wearing armbands, or protesting. It is worth noting that the US Supreme Court has often struggled to determine what exactly constitutes protected speech.
| Characteristics | Values |
|---|---|
| Amendment Number | First Amendment |
| Protected Speech | Direct (words) and symbolic (actions) |
| Examples of Protected Speech | Not to salute the flag, wear black armbands to school to protest a war, use offensive words to convey political messages |
| Examples of Unprotected Speech | False defamation, genuine threats or harassment, intended and likely to provoke imminent unlawful action |
| Government's Role | To protect individuals' freedom of speech, even if offensive or hateful, to allow for the expression of unpopular opinion and encourage debate |
| Government Restrictions | Generally, the government cannot restrict speech because of its content, i.e., targeting the speaker's message |
| Exceptions | The government can constitutionally restrict speech in three situations under a less demanding standard |
| Political Expenditure | The government can limit the amount individuals contribute to political candidates to reduce undue influence |
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What You'll Learn
Freedom of speech in the First Amendment
The First Amendment to the United States Constitution protects freedom of speech. It states that "Congress shall make no law...abridging the freedom of speech". This amendment ensures that the American people have the right to speak freely in the public square without government interference. The Supreme Court has interpreted this to mean that the government may not jail, fine, or impose civil liability on people or organisations based on what they say or write, except in exceptional circumstances.
The First Amendment also protects symbolic expression, such as displaying flags, wearing armbands, or using offensive words and phrases to convey political messages. The Supreme Court has held that restrictions on speech because of its content—that is, when the government targets the speaker's message—generally violate the First Amendment. For example, laws prohibiting people from criticising a war, opposing abortion, or advocating illegal drug use are considered unconstitutional content-based restrictions.
The First Amendment has been interpreted to include the freedom of the press. This means that the government cannot censor or restrict the publication of information or opinions by the media. The First Amendment also protects the right of people to peaceably assemble and to petition the government for a redress of grievances.
While the First Amendment guarantees freedom of speech, it is not absolute. There are certain limitations and types of speech that are not protected. For example, in Buckley v. Valeo (1976), the Supreme Court held that the government could limit the amount that individuals contributed to political candidates to reduce undue influence. Additionally, the Supreme Court has struggled to determine what exactly constitutes protected speech, as in the case of students making obscene speeches at school-sponsored events.
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Symbolic expression
Freedom of speech is enshrined in the First Amendment to the United States Constitution. The First Amendment states that "Congress shall make no law...abridging freedom of speech".
Freedom of speech also applies to symbolic expression, as outlined in the First Amendment. Symbolic expression, or symbolic speech, includes expressive conduct such as picketing, marching, and sit-ins, as well as symbolic conduct like flag desecration, burning crosses, and draft-card burnings. These actions are considered symbolic expression when they are intended to communicate a point of view.
The Supreme Court has held that restrictions on speech because of its content, or when the government targets the speaker's message, generally violate the First Amendment. For example, in West Virginia Board of Education v. Barnette, the Court upheld the right of students not to salute the flag, and in Tinker v. Des Moines, the Court protected students' right to wear black armbands to school to protest a war.
In NAACP v. Claiborne Hardware Co., the Court ruled that speeches and nonviolent picketing to inform merchants of grievances and encourage others to join a boycott were protected activities under the First Amendment. The Court observed that the goals of the boycott were legal and that most of the means used were constitutionally protected, even if some members engaged in or advocated violence.
The First Amendment also protects the freedom to engage in expressive conduct that implicates symbolic expression. In United States v. Eichman, the Court characterised the government's interest in preserving the flag's status as a symbol of the nation and certain national ideals. However, the Court also recognised that laws prohibiting acts of disrespectful treatment of the flag could constitute suppression of free expression.
The First Amendment's protection of symbolic expression extends to political expenditures and contributions, as recognised by the Supreme Court. The Court has held that these expenditures and contributions are "speech" within the meaning of the First Amendment as they facilitate political expression. However, the government may constitutionally limit these expenditures and contributions to reduce the risk of undue influence, as seen in Buckley v. Valeo.
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Protected speech
The First Amendment to the United States Constitution protects freedom of speech. It states that "Congress shall make no law...abridging the freedom of speech". This means that the government may not jail, fine, or impose civil liability on people or organisations based on what they say or write, except in exceptional circumstances. The First Amendment also protects the right not to speak, such as the right not to salute the flag.
The First Amendment protects a wide variety of expression, including pure speech (spoken word), written expression, typed and published expression, and symbolic speech or expressive conduct (like burning a flag). It also protects speech plus conduct, such as peaceably assembling to engage in protests and boycotts.
The Supreme Court has held that restrictions on speech because of its content—that is, when the government targets the speaker's message—generally violate the First Amendment. Laws that prohibit people from criticising a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. However, there are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.
There are also a limited number of narrow exceptions to what the First Amendment protects. This includes situations where immediate violence is provoked, someone is unduly intimidated, or falsehoods are spread about someone else. Speech that incites imminent lawless action is also not protected. For example, in Brandenburg v. Ohio (1969), a case involving a KKK rally, the Court held that to lose its constitutional protection, speech must be "directed at inciting or producing imminent lawless action" and actually be "likely to incite or produce such action".
In terms of political expression, the Supreme Court has held that political expenditures and contributions are "speech" within the meaning of the First Amendment because they facilitate political expression. However, the Court has also recognised that these could be regulated in a way that is consistent with the First Amendment if the government can demonstrate a sufficiently important justification.
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Unprotected speech
The First Amendment of the US Constitution protects the freedom of speech, religion, and the press. It also protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political, or religious purposes, as well as the right to protest the government. However, there are certain categories of speech that fall outside of constitutional protection and are considered "unprotected speech".
Incitement, for example, is a form of unprotected speech. The Supreme Court's 1969 decision in Brandenburg v. Ohio established the standard for incitement, which is speech that is "'directed to inciting or producing imminent lawless action and is likely to incite or produce such action'. This includes advocacy of the use of force or violation of the law. In Chaplinsky v. New Hampshire (1942), the Supreme Court also held that "fighting words" are a form of unprotected speech, which are words that tend to incite an immediate breach of the peace by provoking a fight or a violent reaction.
Defamation is another form of unprotected speech. In Gertz v. Robert Welch, Inc. (1974), the Supreme Court stated that there is "no constitutional value in false statements of fact". False statements of fact made with a "'sufficiently culpable mental state' or with knowledge of their falsity can be subject to civil or criminal liability. Libel and slander laws fall under this category. Additionally, perjury, extortion, criminal conspiracy, and solicitation to commit a specific crime are also considered unprotected speech.
Obscenity is a further category of unprotected speech. Under the Miller test, speech is unprotected if it appeals to a "prurient interest", depicts sexual conduct or excretory functions in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. Child pornography is a distinct exception, where speech is unprotected if it visually depicts children performing sexual acts or exhibiting their genitals.
Finally, while hate speech receives substantial protection under the First Amendment, it may be prohibited and punished if it falls into other categories of unprotected speech, such as harassment or true threats. True threats are statements where the speaker intends to communicate a serious expression of an intent to commit an act of unlawful violence against a particular individual or group.
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Freedom of speech in court cases
The First Amendment to the United States Constitution enshrines the right of the American people to speak freely in the public square without government interference. The First Amendment states that "Congress shall make no law...abridging freedom of speech." Over the years, the Supreme Court has played a significant role in shaping the interpretation and application of freedom of speech through its rulings in various court cases.
One notable case is West Virginia Board of Education v. Barnette (1943), where the Court upheld the right of students not to salute the flag, recognising their freedom of speech even within the schoolhouse gate. In Tinker v. Des Moines (1969), the Court protected students' right to wear black armbands to school to protest a war, affirming that symbolic expression is encompassed by the First Amendment. Similarly, in Cohen v. California (1949), the Court ruled that offensive words and phrases used to convey political messages are protected speech.
However, the Supreme Court has also outlined certain limitations to freedom of speech. In Bethel School District #43 v. Fraser (1986), the Court held that students do not have the right to make obscene speeches at school-sponsored events. Additionally, in Morse v. Frederick (2007), the Court ruled that advocating illegal drug use at a school-sponsored event is not protected speech. The Court has also addressed the issue of campaign financing, holding that the government can limit contributions to political candidates to prevent undue influence, as seen in Buckley v. Valeo (1976) and McConnell v. Federal Election Commission (2003).
The Supreme Court has grappled with defining unprotected speech, such as "true threats" and "fighting words." In United States v. Watts (1969), the Court ruled that an anti-war protestor's statement about then-President Lyndon B. Johnson was protected speech as it was deemed hypothetical and exaggerated. The Court has also recognised the right of association within the First Amendment, protecting membership lists of civil rights organisations from state investigation in NAACP v. Alabama (1958).
In conclusion, freedom of speech court cases have played a crucial role in clarifying and defining the boundaries of this fundamental freedom. The Supreme Court's rulings have shaped the interpretation of the First Amendment, ensuring that Americans can exercise their right to free speech while also upholding public order and safety.
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Frequently asked questions
Freedom of speech is protected by the First Amendment to the US Constitution.
The First Amendment states that "Congress shall make no law...abridging freedom of speech." This means that the government may not jail, fine, or impose civil liability on people or organisations based on what they say or write, except in exceptional circumstances.
The term "speech" is interpreted broadly and includes spoken and written words, as well as symbolic speech such as displaying flags, wearing armbands, or protesting.
Yes, there are some limits to freedom of speech. For example, the government can restrict speech that incites violence, harasses or defames a specific individual, or violates the law. Additionally, the Supreme Court has held that the government can constitutionally limit the amount that individuals contribute to political candidates to reduce the risk of undue influence.
The First Amendment has been invoked in a number of landmark Supreme Court cases, including:
- Tinker v. Des Moines (1969): Students have the right to wear black armbands to school to protest a war.
- Cohen v. California (1972): Individuals have the right to use certain offensive words and phrases to convey political messages.
- NAACP v. Alabama (1958): The right of association within the First Amendment protects membership lists against state investigation.
- Citizens United v. Federal Election Commission (2010): Most governmental efforts to regulate political expenditures and contributions violate the First Amendment.
