What Speech Is Protected by the First Amendment?

gavel and American flag

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.

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:

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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