What Is Political Speech, and Is It Protected by the First Amendment?

Political speech refers to expression discussing governmental affairs or examining candidates for public office and campaign issues. It encompasses almost any governmental or social issue of public concern.

Political speech is the core type of speech the First Amendment was designed to protect. As such, it usually receives strong protection from the courts.

The text of the First Amendment reads, “Congress shall make no law … abridging the freedom of speech.” It does not divide speech into different categories, but the U.S. Supreme Court has emphasized that political speech receives more protection than other categories, such as commercial speech, sexual speech, including obscenity and some types of indecent speech, and purely personal expression not involving issues of public concern or importance.

The court explained this in Mills v. Alabama (1966):

“Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.”

Who can engage in political speech?

Any person can engage in political speech. It is not confined to politicians, political candidates or important government officials. Everyone has a First Amendment right to utter, write or display political speech. And political speech touches all five First Amendment freedoms, often appearing in the press, in protests, in petitions to the government, and even in how we exercise — or not — our religious beliefs.

Is all political speech protected by the First Amendment?

Most political speech is protected by the First Amendment — and if the government passes a law to restrict protected political speech, courts will almost always find that law unconstitutional.

But not all political speech receives First Amendment protection. If it crosses the line into an unprotected category of speech, it loses such protection.

For example, let’s say a person passionately believes that a particular politician is bad for her community. She then writes an online post that expresses her opposition to the candidate but also directly threatens that politician — a form of speech known as a “true threat.” True threats are not protected speech. There is no First Amendment right to threaten another person, even if it reflects someone’s sincerely held political beliefs.

Similarly, let’s say a person genuinely dislikes a politician. The person then urges other people to harm that politician. This might fall under the unprotected speech category known as incitement to imminent lawless action. However, courts have defined this category of speech very narrowly. It would be easy to label almost any political speech as incitement, particularly if there’s a violent or disorderly response to the speech, but to avoid interfering with political speech, courts have made it very clear that a particular set of factors is required for speech to be considered incitement.

Defamation means false statements that harm someone’s reputation, and it is another category of unprotected speech. However, even within this kind of speech, there’s more protection for defamatory political speech than there is for defamatory speech that isn’t political. This is due to a standard known as actual malice, which provides more protection for defamatory speech that applies to public figures and public officials and is designed to promote robust discussion of matters of public concern. Another limited area of political speech involves campaign finance and political spending.

In 1976, the U.S. Supreme Court famously declared that “money is speech” (Buckley v. Valeo). In other words, the court explained that when someone contributes money to a political candidate or spends money on behalf of a candidate, it’s an expression of support for the candidate. This, to a majority of the U.S. Supreme Court, was a form of political speech.

The court later extended this principle to corporations and certain organizations in Citizens United v. Federal Election Commission (2010), classifying much corporate political spending as protected speech under the First Amendment.

But the court also noted there are limits to this form of political speech, allowing restrictions on individual contributions to political campaigns and candidates to preserve the “integrity of our system of representative democracy.” Indeed, federal and state laws limit the amount of money that people or committees may contribute to or spend in elections.

For example, current federal law limits the amount of money a person can contribute to a candidate to $3,500. Beyond individuals, the Federal Election Commission also sets contribution limits for campaign committees and political action committees.

What are some key political speech cases?

Political speech and public officials

New York Times Co. v. Sullivan (1964), the Supreme Court’s seminal defamation case, was also an important decision on political speech. The case concerned an editorial advertisement published in The New York Times that discussed human rights abuses in Alabama.

The court explained that the advertisement “communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern.” In other words, the editorial advertisement was political speech — and protected by the First Amendment.

Furthermore, the court declared in famous language that there is “profound national commitment ... that debate on public issues should be uninhibited, robust, and wide-open” and “may include … sharp attacks on government and public officials.”

This case clearly reflects and affirms the principle that political speech is one of the most protected forms of speech.

Political speech in the press

Two years later, the Supreme Court decided Mills v. Alabama (1966). The state of Alabama had passed the Alabama Corrupt Practices Act, which prohibited the publication of newspaper editorials on election day. The law imposed criminal punishment for violating its terms.

James Mills, the editor of the Birmingham News-Herald, was arrested for violating the law after he wrote and published an editorial on election day. He challenged the constitutionality of the law, arguing it violated his First Amendment right to engage in political speech.

The Supreme Court agreed with Mills. Writing for a unanimous court, Justice Hugo Black said:

“The Alabama Corrupt Practices Act, by providing criminal penalties for publishing editorials such as the one here, silences the press at a time when it can be most effective. It is difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press.”