By Eric P. Robinson
There’s been a lot of public statements and commentary in the past few days, weeks and years about what the free speech provisions of the First Amendment mean. Some of the statements, even from those charged with enforcing the law, have been strained, incomplete or just flat-out wrong.
So, here’s a basic guide to what the courts have determined the First Amendment to mean.
The First Amendment states that “Congress shall make no law … abridging the freedom of speech, or of the press … .” I will focus here only on this speech and press provision, leaving interpretation of the provisions regarding religion and those regarding peacefully assembling and petitioning the government to others, although they also involve speech.
First of all — and this is going to seem like a very lawyerly point — “Congress” doesn’t just mean Congress. Under U.S. Supreme Court precedent, the First Amendment applies not only to Congress, but also applies equally to the other branches of the federal government: the executive branch (the President, his staff, cabinet and administrative agencies) and the judicial branch (the federal courts). This means that any entity of the federal government, in whichever branch of the government organization flowchart it might fall, is barred by the First Amendment from “abridging the freedom of speech, or of the press.”
The First Amendment also applies to state and local government entities. This is because of language in the 14th Amendment, which provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”
In a 1925 case, the U.S. Supreme Court concluded that because of this language, in addition to entities of the federal government not being able to impose undue restrictions on speech, neither can state government entities or other entities of government created by the states, including county, municipal and other local government entities.
This includes government entities in their role as employers. So employees of government entities get some protection from retaliation — firing or other discipline — for their speech, as long as the speech regards a matter of public concern; is made as a citizen, not as a government employee; and does not actually, or have the potential to, substantially impact the government workplace.
The First Amendment does not provide protection for employees of non-government entities. So most private employers can fire or take disciplinary action against employees for their speech, although there are a few exceptions regarding reporting illegal conditions or activities, and in some states, statements regarding working conditions and union formation. It does not matter if a private company holds government contracts.
The second lawyerly point is that while the First Amendment seems absolute, saying that “Congress shall make no law,” (emphasis added), the courts have found that government can actually impose some limitations on speech: by punishing it after it is said, or in limited cases, prohibiting it entirely. But there are only a few permitted restrictions, and they are rather circumscribed.
Speech that can be banned/punished consistently with the First Amendment includes:
- National Security Information: This includes classified information and other information that can threaten national security. In the past several years the federal government has successfully prosecuted government employees and contractors for releasing such information, including Chelsea Manning. But the government has rarely sought to stop publication, particularly after the U.S. Supreme Court rejected the government’s attempt to stop publication of the Pentagon Papers in 1971.
- Libel and Privacy: Libel claims statements that harm someone’s reputation existed before adoption of the First Amendment, so were generally considered to not be barred by it. In the landmark New York Times v. Sullivan case in 1964 and subsequent cases, the U.S. Supreme Court weighed libel and the First Amendment protection of speech, resulting in the requirement that public figures must show “actual malice” — knowledge that a statement is false, or publishing it with reckless disregard for whether it is true or false — in order to be successful in a libel case. Privacy claims were only recognized by the courts starting in the early-20th century, but courts have applied the requirement to show “actual malice” to those claims as well.
- Incitement to Violence: This type of speech can be prosecuted, according to a landmark 1969 case, only if a statement poses a threat of “imminent lawless action.” The two adjectives of this standard are taken literally: the statement must be likely to provoke an immediate (“imminent”) illegal action such as a riot, or a killing. The statement must be pretty direct — “Let’s go get him!,” with an identifiable target — rather than a general statement that perhaps urges illegal action — such as overthrowing the government — in only a general, non-immediate sense.
- True Threats: A “true threat” is a statement that is conveyed to an individual and threatens harm to that individual. The Supreme Court has held that the speaker must either actually intend the statement to be a threat, or make it without considering that a reasonable observer would see the statement as threatening.
- Obscenity:The Supreme Court has a specific definition for obscenity. If the material meets this test (it is obscene), it is not protected by the First Amendment and can be criminally punished. Material that does not meet the test is not legally obscene. It may be indecent, in which case it may be restricted on broadcast radio and television to hours when children are not likely to be watching, but non-obscene material cannot be banned, including online. There is a recent trend of activists labelling material they disapprove of — such as LGBTQ+ material — as “obscene,” but there is no legal basis for applying this label unless it meets the requirements of the test for obscenity. But there is a major subcategory that receives no First Amendment protection and is severely prosecuted: sexual material involving children.
- “Fighting Words:” In a 1942 case, the U.S. Supreme Court held that “fighting words” — words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace” — can be punished by the government as a means of preventing violence. This is slightly different from statements inciting “imminent lawless action,” discussed above, in that the violence comes from the person to whom the “fighting words” are directed. The scope of speech that meets the definition of “fighting words” has been reduced by subsequent court decisions, to the point that some question whether it is still a valid restriction on speech.
- Commercial Speech: Advertising receives some First Amendment protection, but the courts have held that federal, state and local governments can also impose restrictions on commercial speech in order to further a substantial government interest, such as punishing false advertising.
- Time / Place / Manner Restrictions: In addition to the above types of speech that can be restricted, the government may also place reasonable limits on when, where and how speech may occur. But these limits must be the least restrictive means of furthering a substantial government interest and cannot effectively ban the speech entirely.
- Violence: Violence and criminal acts, even if they are meant to “send a message,” are not protected under the First Amendment. Often, it’s hard to distinguish between actions and speech, as with burning a flag (see below). But if an action causes harm to someone or to property, no matter what the motive, it is likely to not receive First Amendment protection. Note that while violence is not protected, depictions and descriptions of violence are (see below). Also, note that offensive, insulting or objectionable speech is not itself violence (or terrorism).
That’s it. Those are the types of speech that the Supreme Court has held can be restricted or punished. Of course, this leaves a lot of other speech, including some categories of speech that some may be surprised are protected by the First Amendment.
- “Hate” Speech: Many people are surprised to learn that expressing hatred — towards an individual or a racial, ethnic or other group — is not among the types of speech that can be restricted. In short, “hate speech,” including anti-Semitic speech, is protected by the First Amendment. The U.S. Supreme Court and lower courts have ruled this way in several cases, including ones allowing a Nazi group to march in a heavily-Jewish Chicago suburb in the 1970s and in Charlottesville, Va., in 2017. (There were arrests when the latter march turned violent.) The courts have rejected arguments that hate speech constitutes “fighting words” and thus can be restricted. But the courts have held that the government may punish speech that is meant to intimidate on the basis of hatred, and may enhance punishment for non-speech motivated by racial hatred.
- Insults / Offensive Speech: Although it’s not a legal doctrine, the courts have generally embraced the concept that “Sticks and stones may break my bones, but names will never hurt me.” Unless an insulting statement is libel (a false statement that harms someone’s reputation), “fighting words,” or falls into another one of the categories above, it is protected by the First Amendment. This includes, for example, offensive speech outside military funerals.
- Curse words: Unless a curse word is so incendiary that it is “fighting words,” incitement or a “true threat,” it is protected by the First Amendment as free speech. In 1969, the Supreme Court held that a man could not be prosecuted for disturbing the peace for wearing a jacket that said “F—the Draft.”
- Criticism of public officials, government policies and public figures: A primary rationale for enactment of the First Amendment is that the public should be able to criticize elected and appointed government officials and the policies they enact. This was also the rationale for the Supreme Court’s ruling in Sullivan that government officials must prove “actual malice” in a libel case, so that libel cannot be used as a means of stifling criticism. This “actual malice” requirement has been extended to public figures on the grounds that by taking on such a role they subject themselves to public criticism.
- Descriptions and depictions of violence: While violent actions usually don’t receive First Amendment protection, descriptions and depictions of violence do. Thus the government may not restrict children’s access to violent videogames or ban depictions of animal cruelty.
- Burning the Flag: Burning the American flag may send a powerful message, and may be offensive to many. But the Supreme Court has held twice that burning the flag as a form of political protest is protected by the First Amendment. President Trump recently issued an executive order on the issue, but even that order recognizes that flag burning is protected; so it calls for prosecutions of flag-burners on charges such as arson or incitement of violence. But the Supreme Court rejected incitement as a basis for prosecuting flag burners.
These are the basics. Of course, lots of the nuance is missing here. But it’s important for folks to know what types of speech are and are not protected by the First Amendment, especially with lots of people making specious claims that various types of speech are or are not protected. Often, the claims are based on personal preferences, not on legal precedent. And it’s the latter — court decisions accumulated since the First Amendment was added to the Constitution in 1791 — that determines what is protected by the First Amendment, not personal whimsy.
Eric P. Robinson is the Reid H. Montgomery Chair in Freedom of Information at the University of South Carolina’s School of Journalism and Mass Communications, where he teaches media and internet law as an associate professor at the USC School of Journalism and Mass Communication, and an academic affiliate of USC’s Joseph F. Rice School of Law. He is “of counsel” at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 30 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.
