What Speech Is Protected by the First Amendment?

By Freedom Forum

What speech is protected by the First Amendment? What speech isn't?

For example: Can your bosses fire you for stating opinions they disagree with? Can your school keep you from starting a controversial club? Can a website or newspaper refuse to publish your opinion?

Freedom Forum’s "Where America Stands" survey shows that freedom of speech is the most known and valued of the five First Amendment freedoms. But there is often confusion around what speech is protected by the First Amendment and in what cases. There is also confusion around what speech isn't protected by the First Amendment.

So, when does the First Amendment protect your speech from censorship or punishment? Here's everything you need to know.

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

1. Is it speech?

Freedom of speech applies to more than the words that come out of your mouth. It applies to many different forms of expression, including:

Written works such as books, newspaper articles and poetry
Online posts
Movies and television
Theater and dance
Art
Video games
Political yard signs
Handing out fliers
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. 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 includes not only lawmakers and elected officials, but also public schools and universities, courts and police officers.

Private people, businesses and organizations are not bound by the First Amendment. This means that:

A private school or college 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. Does it fall into an unprotected category of speech?

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

Child sexual abuse material

Child sexual abuse material is not protected by the First Amendment.

Commercial speech

Advertisements for products or services receive some First Amendment protection but not as much as other forms of speech. False advertising can be regulated. Even truthful advertisements can be limited in certain ways. For instance, regulations prohibiting advertising of certain products like alcohol, tobacco and gambling in a way that attracts minors do not violate the First Amendment.

Blackmail

Blackmail is not protected by the First Amendment.

Defamation

Defamation is a false statement of fact (not an opinion) that harms 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, they may sue. To win a lawsuit against you, they will have to prove that you acted with actual malice — that 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; that 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 to lose First Amendment protection. They must be intended to provoke a violent reaction toward the speaker from the person spoken to or someone nearby.

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

Incitement to imminent lawless action

The First Amendment does not protect speech that is intended to incite listeners to imminent lawless action.

This kind of speech is a direct call to commit immediate, lawless action. The speaker must expect 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 unprotected speech.

National security

Speech can be restricted if it is intended only to harm the interests of the United States or aid its enemies or if it poses a clear threat to human lives.

The government cannot rely on vague claims of danger. It must show there is a real harm or threat in order to limit speech.

Obscenity

Obscenity is not protected by the First Amendment.

Depictions of nudity or sex are not automatically obscenity. To be legally obscene, and lose First Amendment protection, content must meet three criteria set up by the U.S. Supreme Court:

The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the “prurient interest,” meaning a morbid, degrading and unhealthy interest in sex.
The work depicts or describes, in a clearly offensive way, an act of sexual conduct.
The work, taken as a whole, lacks any serious literary, artistic, political or scientific value.

Perjury

Lying does not always lose First Amendment protection. But lying under oath, such as when serving as a witness in a trial, is not protected by the First Amendment.

Plagiarism

If you copy someone else’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 fine you.

Copyright law does not protect ideas, facts, methods of operation or scientific principles. This information is considered public. It does protect an 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 were created for nonprofit 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. On the other hand, using something in a news report is not always “fair use” even though a major goal is to inform and educate.
Type. Generally, works of fiction and other creative efforts like music 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

Convincing someone else to commit a crime is not protected by the First Amendment.

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 the victim in fear of bodily harm or death or should have been aware that the words would have that effect, even if the speaker had no intent of carrying out the threat.

Different courts have different ways of weighing the speaker’s intent and the recipient’s reasonable belief that 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 First Amendment 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. But a school needs to have evidence that this has occurred or strong evidence it will occur; speculative fears aren’t enough to silence student speech.

Government employees

Sometimes the government needs to be able to discipline or limit the speech of its employees 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.

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 is tied to their official duties, that speech is not protected by the First Amendment and the employee can be punished.
If the government employee’s speech is not tied to 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 said prison regulations can limit an incarcerated person’s First Amendment rights if the regulation is related to a legitimate and neutral interest of the prison.

In deciding this, a court will consider:

Whether the regulation is applied in a neutral manner that 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.

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