First Amendment: Freedom of Speech — What's Protected and What's Not
11 min • Constitutional Law
The First Amendment prohibits Congress (and through the Fourteenth Amendment, state and local governments) from 'abridging the freedom of speech.' But this protection is not absolute. The Supreme Court has recognized several categories of speech that receive less — or no — First Amendment protection, while strongly protecting political and ideological speech.
The highest level of protection applies to political speech and speech on matters of public concern — the core of what the First Amendment was designed to protect. Under Brandenburg v. Ohio, 395 U.S. 444 (1969), even advocacy of illegal conduct is protected unless it is 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action.' This is a very high bar.
Unprotected or less-protected categories include: obscenity (Miller v. California, 413 U.S. 15 (1973), establishing the three-part Miller test), defamation (New York Times Co. v. Sullivan, 376 U.S. 254 (1964), requiring 'actual malice' for public figures), true threats, fighting words, child pornography, and fraud. Commercial speech receives intermediate protection under Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
Government can regulate the time, place, and manner of speech, but content-based restrictions face strict scrutiny and are presumptively unconstitutional. Content-neutral restrictions must be narrowly tailored to serve a significant government interest and leave open ample alternative channels for communication. The government generally cannot engage in viewpoint discrimination — favoring one perspective over another.
The First Amendment also protects expressive conduct (symbolic speech) if the speaker intends to convey a particularized message and the message is likely to be understood by observers. In Texas v. Johnson, 491 U.S. 397 (1989), the Court held that flag burning is protected expressive conduct. However, the government can regulate the non-expressive elements of conduct — you can't burn a flag in violation of fire codes.
Key Takeaways
- Political speech receives the highest protection — even advocating illegal conduct is protected (Brandenburg)
- Unprotected categories: obscenity, defamation, true threats, fighting words, child pornography, fraud
- Content-based restrictions face strict scrutiny; content-neutral time/place/manner rules are easier to justify
- Symbolic speech (flag burning, armbands) is protected if it conveys a particularized message
- The government cannot engage in viewpoint discrimination in regulating speech
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