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Freedom of Speech

Ken Paulson

Freedom of speech is the most readily recognized of the five freedoms in the First Amendment and the only one that’s known by a majority of Americans. That’s not a surprise; it’s also the First Amendment freedom that most of us use every day and all day. 

Like the other guarantees in the Bill of Rights, our right to speak freely protects us from limits by the government. It does not, however, prevent rules limiting our speech in other settings. For example, an employer can tell an employee what not to say in the workplace. A condominium association can remove a sign on a resident’s front lawn if it’s in violation of bylaws. A private business can eject a customer engaged in what it regards as disruptive speech.

Free speech protection against government interference is not limited to the spoken word. The government is barred from limiting communication in many different settings, including the presentation of visual art, performances, songs, poetry and film. 

Protected speech can also be embodied in symbols that don’t specifically say anything but convey a point of view.

Principles of free speech stretch back centuries, as far as ancient Greece. Early codification of freedom of speech can be found in the English Parliament’s Bill of Rights passed in 1689, “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown.” The bill was highly influential in the drafting of the United States Bill of Rights in 1791, roughly a century later.

The latter half of the 20 th century was a particularly robust era for the expansion and strengthening of free speech rights, thanks to both shifting judicial attitudes and the emergence of new technologies and platforms. Among key free speech decisions:

The free speech right to dissent

Political speech — comments about political figures and circumstances — have strong protection under the First Amendment, permitting often provocative actions and speech in the name of dissent.

Brandenburg v. Ohio (1969) —The Supreme Court ruled that advocacy of illegal conduct is protected as free speech unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” General advocacy of illegal acts in the future cannot be punished.

Texas v. Johnson (1989) —The Supreme Court invalidated a Texas law prohibiting flag desecration, concluding that the burning or desecration of a flag for expressive purposes is protected as free speech under the First Amendment. 

Spending as free speech

Citizens United v. FEC (2010) — The Supreme Court struck down restrictions on corporations spending funds for advocacy and influencing the potential outcome of elections. This established the right of corporations to engage in political speech. 

“The First Amendment does not allow political speech restrictions based on a  speaker’s corporate identity ,” Justice Anthony Kennedy wrote for the majority.

The decision is arguably the most controversial First Amendment ruling of the 21 st century and is often decried as enabling corruption in government.

The free speech rights of students

Young people also have First Amendment rights, tests of which usually arise in public schools. 

West Virginia Board of Education v. Barnette (1943) — The Supreme Court ruled that public school students could not be compelled to recite the pledge of allegiance, affirming that freedom of speech also means the freedom not to speak. The case also established that students have some level of First Amendment protection.

Tinker v. Des Moines Independent Community School District (1969) — The Supreme Court found that public school students were wrongly suspended after wearing black armbands to protest the war in Vietnam . Students have First Amendment rights, the court noted, and established that school administrators and teachers can’t limit students’ free expression unless they reasonably determine that the expression will “substantially disrupt” school operations or violate the rights of others. 

Limits on obscene content

Although many conflate “obscenity” with “pornography,” the latter is actually protected by the First Amendment. The Supreme Court has had to grapple with defining legally obscene content.

Miller v. California (1973) — Obscene content is not protected by the First Amendment, but not all sexually oriented content is obscene. In this case, the Supreme Court created a three-part test for determining whether content is legally obscene: “Whether the average person, applying contemporary  community standards , would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 

Cases involving non-traditional media and the internet

Joseph Burstyn v. Wilson (1952) — In striking down a New York ban on the public showing of a film entitled The Miracle , the Supreme Court concluded that government may not limit “sacreligious” speech and that film is protected by the First Amendment.

Reno v. American Civil Liberties Union (1997)  — In striking down provisions of the  1996 Communications Decency Act  (CDA) as violations of free speech rights, the Supreme Court concluded that content on the internet in the United States has the same level of protection as print publications and other physical media.

Brown v. Entertainment Merchants Association (2011) — The Supreme Court invalidated a California law that criminalized the sale of violent video games to minors, concluding that the depiction of violence is not legally obscene and that First Amendment protections apply.

Written by Ken Paulson, director of the Free Speech Center, 2023.

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