Free Speech

KEY LAWS TO KNOW ABOUT FREE SPEECH IN THE U.S.

Freedom of speech and expression is generally protected by the 1st amendment in the

U.S. Constitution. But the 1st amendment doesn’t protect ALL speech or expression and it only prevents the government from restricting speech. Non-government people or companies, such as employers, generally are allowed to restrict your speech in certain ways.

What type of speech does the 1st amendment protect? 

The government generally may NOT restrict your right to:

  1. Protest or make political speech, except that it may require you to get a permit to assemble a group of people, or restrict noise levels, or prevent you from trespassing on private property, and impose other similar restrictions.
  2. Burn or otherwise damage or destroy the American flag1See Texas v Johnson (1989)
  3. Decide not to speak or express oneself; for example, you have the right to refuse to salute the flag.2see West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943) However, in certain circumstances the government may compel you to speak (see compelled speech below)
  4. Express political messages on a school campus3see Tinker v. Des Moines, 393 U.S. 503 (1969)
  5. Use offensive language to convey a political message4see Cohen v. California, 403 U.S. 15 (1971)

What types of speech are NOT protected by the 1st amendment?

The government may restrict your right to:

  1. Yell “fire” in a crowded theater, or other speech that incites imminent lawless action.5Schenck v. U.S.
  2. Make “true” threats of violence against another person, where the speaker actually intends to carry out the threat.6See Watts v. United States, Virginia v. Black
  3. Make “obscene” expression; this is a very high standard, and very few things are obscene enough to be prohibited.7see Miller case
  4. Create, view, or possess child pornography8see See New York v. Ferber
  5. As a student, make an obscene speech at a school-sponsored event.9see Bethel School District #43 v. Fraser, 478 U.S. 675 (1986)
  6. Burn draft cards as an anti-war protest.10United States v. O’Brien, 391 U.S. 367 (1968)
  7. Publish false advertising of a product or service, and in general the government can regulate “commercial” or business-related speech more strictly than non-commercial speech.
  8. Publish or say false things that harm a person’s reputation. This is called “defamation,” which can be either spoken (called slander) or written (called libel). If you say or write true things about someone, that person cannot sued you for defamation. If you say or write false things about someone and that someone is a “public figure,” the public figure can only sue you for defamation if you knew information was false and intended to harm that person’s reputation.11NYT v Sullivan
  9. Publish or say things that violate a person’s privacy rights.
  10. Publish work that is protected by copyright.

When can the government force me to speak about something? (compelled speech)

If the government issues a “subpoena” for you to testify about something, you may be legally required to do so. However, you may be able to “plead the 5th” (5th amendment right to remain silent if you believe answering may implicate you in a crime). “Pleading the 5th” can protect you against having to provide such information even outside a court.12Miranda v Arizona

Journalists: You may be entitled to “journalist’s privilege” so that you wouldn’t need to reveal your sources to the government. This is generally based on whether your state has a “shield law.” 

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