What Speech Is Protected by the First Amendment?

By Freedom Forum

What speech is protected by the First Amendment? Can your bosses fire you for stating opinions they don’t agree with? Can your school keep you from starting a controversial club? Can a website or newspaper refuse to publish your opinion?

Americans are big fans of freedom of speech. Our "Where America Stands" survey showed that free speech is the most recognized of the five freedoms – with 93% of Americans being able to identify it on a list. Despite how popular free speech is, there is often confusion around what speech is protected by the First Amendment – and in what cases.

So when does the First Amendment protect your speech from censorship or punishment? Ask yourself four questions.

Is your speech protected by the First Amendment? 4 questions to ask yourself

1. First of all, is it speech?

Freedom of speech doesn’t just apply to the words that come out of your mouth. It applies to a number of different forms of expression, including:

Written works
Online posts
Movies and television
Theater and dance
Art
Video Games
Political yard signs
Handing out flyers
Clothing
Symbolic speech, like burning a flag or wearing a black armband
The right not to speak, such as a refusal to say the Pledge of Allegiance
Donations of money to political campaigns

2. If it is speech, is the government censoring or punishing it?

The First Amendment only protects your speech from government censorship. It applies to federal, state, and local government actors. This is a broad category that includes not only lawmakers and elected officials, but also public schools and universities, courts, and police officers. It does not include private citizens, businesses, and organizations. This means that:

A private school can suspend students for criticizing a school policy.
A private business can fire an employee for expressing political views on the job.
A private media company can refuse to publish or broadcast opinions it disagrees with.

3. If the government is censoring or punishing it – does it fall into an unprotected category of speech?

There are several categories of speech that are not protected by the First Amendment at all.

Child pornography

Commercial speech

Blackmail

Defamation

Defamation is false statements that harm another person’s reputation, including libel (generally something written) or slander (something said).

If you say or publish something false that harms the reputation of a public figure such as a politician, celebrity, or business leader, in order to succeed in a lawsuit against you, they will have to prove that you acted with actual malice: You knew the statement was false, or you acted with a reckless disregard for the truth.

If you say or publish something false that harms the reputation of a private figure, they will have to prove that you acted negligently: You didn’t take reasonable care to find out the truth, such as by research or fact-checking. This is much easier to prove than actual malice.

Fighting words

The First Amendment does not protect words "that by their very utterance inflict injury or tend to incite an immediate breach of the peace."

This is a very narrow definition. Words that cause offense or emotional pain are not fighting words. They must do more than that in order to fall into this unprotected category of speech.

The First Amendment offers fairly broad protection to offensive, repugnant and hateful speech.

Incitement of imminent lawless action

The First Amendment does not protect speech that leads to imminent lawless action.

This kind of speech has to be directed towards a specific person or group.
It has to be a direct call to commit immediate, lawless action.
There must be an expectation that the speech will in fact lead to lawless action.

A more general statement like “people should rise up one of these days” would not fall into this category of speech.

National security

Obscenity

Obscenity is not protected by the First Amendment.

Depictions of nudity, and many depictions of sex, do not meet the legal definition of obscenity. The legal definition follows these guidelines set up by the Supreme Court:

Would the average person, applying contemporary community standards, find that the work, taken as a whole, appeals to the “prurient interest,” meaning a morbid, degrading and unhealthy interest in sex?
Does the work depict or describe, in a clearly offensive way, an act of sexual conduct?
Does the work, taken as whole, lack any serious literary, artistic, political, or scientific value?

Perjury

Plagiarism

If you copy another person’s writing, speech, art, music, or choreography without permission, that person can sue you for “trespassing” on their property. The court can order you to stop your copyright infringement and impose financial penalties on you.

Copyright law creates property rights for the creators of certain works in order to give people an incentive to create more expressions. If you could freely copy someone else’s work without paying for it, there would be no incentive for anyone to create new material.

Copyright law does not protect the ideas, facts, methods of operation or scientific principles contained in an author’s expression. This information is considered public. It does protect the author’s particular way of expressing ideas and facts.

Copyright law has an exception for “fair use” of someone else’s expression. Courts weigh four factors when they’re determining whether copying someone else’s work to create something new is “fair use”:

Purpose. If the new work was created to make a profit, a court would be less likely to find it “fair use” than if it was created for non-profit educational purposes. But there are exceptions to this: parodies are a good example. Many parodies have been accorded a fair-use privilege even though they were created for commercial profit.
Type. Generally, works of fiction tend to receive more protection than works of nonfiction.
Amount. Usually the more material taken, the less likelihood that the copying will be considered “fair use.”
Harm. Finally, the courts will ask whether your new work has harmed the commercial value of the copyrighted work.

Solicitations to commit crimes

True Threats

True threats are not protected by the First Amendment.

The Supreme Court has said that a statement can be a true threat if the speaker intended to place his victim in fear of bodily harm or death, even if the speaker had no intent of actually carrying out the threat.

Different courts have different ways of weighing the speaker’s intent and the recipient’s reasonable belief something was a threat, so whether something is ruled a true threat might depend on where you are.

4. If it doesn’t fall into an unprotected category – do YOU fall into a special category?

The government generally has greater power to regulate speech when it acts as educator, employer or jailer, so speech rights can be more limited for:

K-12 public school students

Public school students do not lose their constitutional rights when they walk through the schoolhouse doors. But a school’s interest in educating students in a safe environment can sometimes outweigh freedom of speech.

A school has the right to discipline or censor a student’s speech at school or at a school-sponsored activity if that speech substantially disrupts the school environment or invades the rights of others.

Government employees

Sometimes the government needs to be able to discipline or limit the speech of its employees in order to keep its agencies and offices running efficiently. At the same time, government employees aren't totally deprived of the free speech rights that others enjoy.

In an attempt to balance these two interests, the Supreme Court has developed a full body of law on government employee speech:

If a government employee’s speech arose out of their official duties, that speech is not protected by the First Amendment.
If the government employee’s speech did not arise out of their official duties, the First Amendment might protect their speech if:
- The speech was on a matter of public concern.
- The government employee’s interest in commenting on the matter of public concern outweighs the employer’s interest in regulating the speech.
- The government employee’s speech was a substantial factor in whatever penalty they received (termination, suspension, etc.).

People in state or federal prison

The Supreme Court established that when a prison regulation infringes on an incarcerated person’s First Amendment rights, it’s constitutional as long as the regulation is reasonably related to a legitimate and neutral interest of the prison.

In deciding this, a court will consider:

Whether the prison regulation is applied in a neutral manner, and doesn’t discriminate based on the content of their expression.
Whether the regulation leaves open alternative options for expression.
Whether accommodating the speech would negatively impact others.
Whether there is a less-restrictive alternative.

Find more information about First Amendment rights in prison in the Jailhouse Lawyer's Handbook.

Note that this primer should not be taken as legal advice, but as an effort to simplify what can be a very complicated area of the law. If you wish to pursue a First Amendment legal action, you should contact an attorney or legal services group in your area.