The Limits Of Free Speech In The Constitution

The First Amendment of the United States Constitution protects the right to freedom of speech, religion, and expression from government interference. While it grants people the right to express themselves without government interference or regulation, it does not protect speech at all times and in all places. The Supreme Court has consistently ruled that the government can impose limits on free speech in terms of time, place, and manner of delivery. Categories of speech that are given lesser or no protection by the First Amendment include obscenity, fraud, child pornography, speech integral to illegal conduct, and speech that incites imminent lawless action. The interpretation of freedom of speech has been a topic of debate, with the Supreme Court often struggling to determine what constitutes protected speech.

Explore related products

Violence As Obscenity: Limiting the Media's First Amendment Protection (Constitutional conflicts)

$23.93 $34.95

First Amendment (Examples & Explanations)

$50.09 $76.95

Freedom for the Thought That We Hate: A Biography of the First Amendment

$10.99 $17.99

May It Please the Court : The First Amendment: Live Recordings and Transcripts of the Oral Arguments Made Before the Supreme Court in Sixteen Key First Amendment Cases

$19.95 $59.95

“Do Not Call” Laws and the First Amendment: Testing the Limits of Commercial Free Speech Protection

$4.99

When Freedom Speaks: The Boundaries and the Boundlessness of Our First Amendment Right (Brandeis Series in Law and Society)

$26.75 $17.19

Freedom of speech in schools

The First Amendment of the United States Constitution, ratified on December 15, 1791, guarantees the right to freedom of speech, religion, and the press. It also protects the freedom to assemble and petition the government. This amendment applies to students and teachers in public schools, who do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate".

However, the First Amendment does not grant students unlimited freedom of speech within schools. The Supreme Court has ruled that schools have a compelling interest in limiting speech that may "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school", known as the Tinker test for substantial disruption. Schools can also censor student speech in school publications and limit speech that is obscene, vulgar, lewd, indecent, or plainly offensive under the Fraser standard. Additionally, schools can punish students for advocating illegal drug use under the Frederick standard.

The interpretation of freedom of speech in schools has evolved with technological developments. In 2021, the Supreme Court ruled that a school could not discipline a cheerleader for posting vulgar expressions on Snapchat about not making the varsity squad, as it did not substantially disrupt school operations. This case, Mahanoy Area School District v. B.L., clarified that schools have less regulatory interest in regulating the speech of students off-campus and on social media.

The issue of freedom of speech in schools is complex and has been the subject of controversy and litigation since the mid-20th century. While students have First Amendment rights, schools have a responsibility to maintain discipline and teach students about civil discourse and socially appropriate behaviour.

Freedom of speech in universities

The First Amendment to the U.S. 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, this does not mean that individuals may say whatever they wish, wherever they wish. For instance, the Supreme Court has ruled that certain types of speech are not protected by the First Amendment, such as obscenity, defamation, and inciting imminent lawless action.

Universities are meant to be places where freedom of speech and academic freedom are upheld and encouraged. Academic freedom allows for the exchange of diverse beliefs, theories, and opinions, and plays a central role in innovation and discovery. It ensures that different voices are heard in debate and discussion, and facilitates inquiry and study in a range of areas that are sometimes complex and controversial.

However, in practice, the freedom of speech in universities is not absolute and is subject to certain limitations. For example, universities may restrict speech that defames a specific individual, constitutes a genuine threat or harassment, or is intended and likely to provoke imminent unlawful action. Additionally, universities may regulate the time, place, and manner of speech to ensure it does not disrupt the ordinary activities of the university.

In the UK, the Higher Education (Freedom of Speech) Act 2023 was introduced to strengthen the duties regarding freedom of speech and bring about a change of culture on university campuses. The Act requires universities, colleges, and students' unions in England to take steps to ensure lawful freedom of speech on campus, while also offering protection for academics who teach material that may offend some students. It is important to note that this does not include unlawful speech, such as harassing others or inciting violence.

Freedom of speech in public places

The First Amendment to the U.S. 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. The First Amendment states that "Congress shall make no law...abridging the freedom of speech." However, this does not mean that individuals may say whatever they wish, wherever they wish. The U.S. Supreme Court has interpreted that the First Amendment was never intended to provide such power, because it does not protect speech at all times and in all places. The Court has consistently ruled that the government has the power to impose limits on free speech with respect to its time, place, and manner of delivery.

The Supreme Court has struggled to define unprotected "obscenity" for decades. In Jacobellis v. Ohio, the Court noted that it was faced with the task of trying to define what may be indefinable. Despite this challenge, the Court has established that certain categories of speech are given lesser or no protection by the First Amendment, including obscenity, defamation, and harassment. For example, in Bethel School District #43 v. Fraser, the Court held that students do not have the right to make obscene speeches at school-sponsored events. Similarly, in Davis v. Monroe County, the Court defined unprotected harassment as unwelcome conduct based on an individual's protected status that is sufficiently severe and pervasive to create a hostile or abusive environment.

In addition to these categories, the government may also restrict speech that incites imminent lawless action, as held in Brandenburg v. Ohio. Furthermore, the government may impose time, place, and manner restrictions on speech, provided that these restrictions are content-neutral, narrowly tailored to serve a significant governmental interest, and do not completely shut down avenues for communication. These restrictions have been upheld in various Supreme Court cases, including Clark v. Community for Creative Non-Violence and Ward v. Rock Against Racism.

While the First Amendment protects against government restrictions on speech, it does not apply to restrictions imposed by private individuals or businesses. Private employers and business owners are generally free to restrict speech on their property. For example, a restaurant owner may restrict offensive speech by patrons to avoid liability under "hostile environment" laws. Even government employers and enterprises have broad latitude to control what is said on their property, although public universities have less discretion due to the First Amendment's restrictions.

Explore related products

First Amendment: [Connected Ebook] (Aspen Casebook)

$110 $314

Loaded: A Disarming History of the Second Amendment (City Lights Open Media)

$11.98 $16.95

Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights

$37 $49

The First Amendment (Aspen Casebook)[Connected eBook]

$117.9 $296

The Good Guys, the Bad Guys and the First Amendment: Free Speech Vs. Fairness in Broadcasting

$14.99

The First Amendment (Concepts and Insights)

$45

Freedom of speech in the workplace

The First Amendment to the U.S. 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, this right to free speech is not without limitations, and there are certain contexts in which free speech may be restricted or limited.

One such context is the workplace. Generally, employees do not have freedom of speech at work, and employers can legally take action against employees for their speech or writing. Private employers can restrict employee speech, but they must be careful not to restrict speech that implicates federal and state anti-discrimination laws, the NJCEPA, or constitutes "concerted activity." For example, an employer cannot discipline an employee for complaining about discrimination or harassment in the workplace without potentially violating employment laws. Additionally, employers cannot retaliate against employees who refuse to participate in activities that are illegal or against public policy.

Employees of the federal government have broader free speech protections than those working for private employers. For government employees to receive free speech protections, their speech must involve an issue of public concern and outweigh the government's interest in delivering efficient public services. For instance, a sheriff's deputy was fired for supporting his boss's political rival. The trial court ruled that "liking" something on Facebook was not protected speech, but the appeals court disagreed, stating that the deputy was speaking as a private citizen and that his actions did not disrupt the sheriff's office.

While there is no law preventing employers from restricting employee free speech, doing so can have negative consequences for the business, including anger and resentment among employees and negative publicity or boycotts from customers. Ultimately, while free speech in the workplace is limited, employees can still speak their minds under the right circumstances.

Freedom of speech in the media

The First Amendment to the U.S. Constitution protects the freedom of speech, religion, and the press. It also protects the freedom to assemble peacefully, to protest the government, and to petition the government. While the First Amendment protects freedom of speech, it does not mean that individuals may say whatever they wish, wherever they wish. The U.S. Supreme Court has often struggled to determine what constitutes protected speech. For example, the Court has decided that certain offensive words and phrases used to convey political messages are protected, while obscene speech is not.

The interpretation of freedom of speech and the press by constitutional scholars has evolved over time. The European Convention of Human Rights emphasizes the importance of respecting freedom of speech, and the European Court of Human Rights has developed sophisticated ways of balancing competing rights in traditional media. For instance, the case of Mosley v United Kingdom [2011] ECHR 774 recognized the distinction between reporting facts in the public interest and press reports focusing on sensational news intended to entertain.

With the advent of social media, the landscape of free speech has changed significantly. Social media platforms have revolutionized our ability to connect across social, political, and geographic divides, allowing anyone to reach millions of individuals instantly. This has led to a democratization of expression and a diversification of public discourse. However, it has also broadened the reach and impact of harmful content, such as disinformation and hate speech.

The question of how to regulate online speech while protecting freedom of expression has become a pressing issue. Intermediaries like Google, Facebook, and Twitter often find themselves facing protests and legal challenges due to abuses of free speech on their platforms. While Article 10 of the European Convention on Human Rights protects the right to freedom of expression, it is qualified by the need to protect the rights of others and carries duties and responsibilities. As a result, regulators in Europe and the United States are grappling with how to address the challenges posed by social media and determine the appropriate scope of protections for online speech.

Frequently asked questions