What Does Free Speech Mean?
Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.
Freedom of speech includes the right:
- Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
- Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines, 393 U.S. 503 (1969).
- To use certain offensive words and phrases to convey political messages. Cohen v. California, 403 U.S. 15 (1971).
- To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo, 424 U.S. 1 (1976).
- To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
- To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).
Freedom of speech does not include:
- Incitement to imminent lawless action
- Solicitations to commit crimes
- Fighting words
- True threats (death threats)
- Defamation (defamatory lies, including libel (written) and slander (spoken))
- Plagiarism of copyrighted material
- Perjury, extortion, or harassment
- Inciting actions that would harm others (e.g., “[S]hout[ing] ‘fire’ in a crowded theater.”). Schenck v. United States, 249 U.S. 47 (1919).
- Making or distributing obscene materials. Roth v. United States, 354 U.S. 476 (1957).
- Child pornography
- Burning draft cards as an anti-war protest. United States v. O’Brien, 391 U.S. 367 (1968).
- Permiting students to print articles in a school newspaper over the objections of the school administration. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
- Making an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).
- Advocating illegal drug use at a school-sponsored event. _Morse v. Frederick, __ U.S. ___ (2007).
- Some experts also would add treason, if committed verbally.
As the Supreme Court held in Brandenburg v. Ohio (1969), the government may forbid “incitement”—speech “directed at inciting or producing imminent lawless action” and “likely to incite or produce such action” (such as a speech to a mob urging it to attack a nearby building).