Freedom of speech in the United States

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In the United States, freedom of speech and expression is strongly protected from government restrictions by the First Amendment to the U.S. Constitution, many state constitutions, and state and federal laws. Freedom of speech, also called free speech, means the free and public expression of opinions without censorship, interference and restraint by the government The term "freedom of speech" embedded in the First Amendment encompasses the decision what to say as well as what not to say. The Supreme Court of the United States has recognized several categories of speech that are given lesser or no protection by the First Amendment and has recognized that governments may enact reasonable time, place, or manner restrictions on speech. The First Amendment's constitutional right of free speech, which is applicable to state and local governments under the incorporation doctrine, prevents only government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are acting on behalf of the government. The right of free speech can, however, be lawfully restricted by time, place and manner in limited circumstances. Some laws may restrict the ability of private businesses and individuals from restricting the speech of others, such as employment laws that restrict employers' ability to prevent employees from disclosing their salary to coworkers or attempting to organize a labor union.

The First Amendment's freedom of speech right not only proscribes most government restrictions on the content of speech and ability to speak, but also protects the right to receive information, prohibits most government restrictions or burdens that discriminate between speakers, restricts the tort liability of individuals for certain speech, and prevents the government from requiring individuals and corporations to speak or finance certain types of speech with which they do not agree.

Categories of speech that are given lesser or no protection by the First Amendment include obscenity (as determined by the Miller test), fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, and regulation of commercial speech such as advertising. Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors over their works (copyright), protection from imminent or potential violence against particular persons, restrictions on the use of untruths to harm others (slander and libel), and communications while a person is in prison. When a speech restriction is challenged in court, it is presumed invalid and the government bears the burden of convincing the court that the restriction is constitutional.

History

Further information: Early American publishers and printers

England

During colonial times, English speech regulations were rather restrictive. The English criminal common law of seditious libel made criticizing the government a crime. Lord Chief Justice John Holt, writing in 1704–1705, explained the rationale for the prohibition: "For it is very necessary for all governments that the people should have a good opinion of it." The objective truth of a statement in violation of the libel law was not a defense.

Until 1694 England had an elaborate system of licensing; no publication was allowed without the accompaniment of the government-granted license.

Colonies

The colonies originally had very different views on the protection of free speech. During English colonialism in America, there were fewer prosecutions for seditious libel than England, but other controls over dissident speech existed.

The most stringent controls on speech in the colonial period were controls that outlawed or otherwise censored speech that was considered blasphemous in a religious sense. A 1646 Massachusetts law, for example, punished persons who denied the immortality of the soul. In 1612, a Virginia governor declared the death penalty for a person that denied the Trinity under Virginia's Laws Divine, Moral and Martial, which also outlawed blasphemy, speaking badly of ministers and royalty, and "disgraceful words".

More recent scholarship, focusing on seditious speech in the 17th-century colonies (when there was no press), has shown that from 1607 to 1700 the colonists' freedom of speech expanded dramatically, laying a foundation for the political dissent that flowered among the Revolutionary generation.

The trial of John Peter Zenger in 1735 was a seditious libel prosecution for Zenger's publication of criticisms of the Governor of New York, William Cosby. Andrew Hamilton represented Zenger and argued that truth should be a defense to the crime of seditious libel, but the court rejected this argument. Hamilton persuaded the jury, however, to disregard the law and to acquit Zenger. The case is considered a victory for freedom of speech as well as a prime example of jury nullification. The case marked the beginning of a trend of greater acceptance and tolerance of free speech.

First Amendment ratification

In the 1780s after the American Revolutionary War, debate over the adoption of a new Constitution resulted in a division between Federalists, such as Alexander Hamilton who favored a strong federal government, and Anti-Federalists, such as Thomas Jefferson and Patrick Henry who favored a weaker federal government.

During and after the Constitution ratification process, Anti-Federalists and state legislatures expressed concern that the new Constitution placed too much emphasis on the power of the federal government. The drafting and eventual adoption of the Bill of Rights, including the First Amendment, was, in large part, a result of these concerns, as the Bill of Rights limited the power of the federal government.

Alien and Sedition Acts

Main article: Alien and Sedition Acts See also: Espionage Act of 1917 and Sedition Act of 1918

In 1798, Congress, which contained several of the ratifiers of the First Amendment at the time, adopted the Alien and Sedition Acts. The laws prohibited the publication of "false, scandalous, and malicious writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame ... or to bring them ... into contempt or disrepute; or to excite against them ... hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States".

The law did allow truth as a defense and required proof of malicious intent. The 1798 Act nevertheless made ascertainment of the intent of the framers regarding the First Amendment somewhat difficult, as some of the members of Congress that supported the adoption of the First Amendment also voted to adopt the 1798 Act. The Federalists under President John Adams aggressively used the law against their rivals, the Democratic-Republicans. The Alien and Sedition Acts were a major political issue in the 1800 election, and after he was elected President, Thomas Jefferson pardoned those who had been convicted under the Act. The Act expired and the Supreme Court never ruled on its constitutionality.

In New York Times v. Sullivan, the Court declared "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." 376 U.S. 254, 276 (1964).

Censorship era

Further information: Censorship in the United States

From the late 1800s to the mid-1900s, various laws restricted speech in ways that are today not allowed, mainly due to societal norms. Possibly inspired by foul language and the widely available pornography he encountered during the American Civil War, Anthony Comstock advocated for government suppression of speech that offended Victorian morality. He convinced the government of New York State to create the New York Society for the Suppression of Vice, in 1873, and inspired the creation of the Watch and Ward Society in Boston in 1878. City and state governments monitored newspapers, books, theater, comedy acts, and films for offensive content, and enforced laws with arrests, impoundment of materials, and fines. The Comstock laws passed by Congress (and related state laws) prohibited sending materials through the U.S. mail that included pornography; information about contraception, abortion, and sex toys; and personal letters mentioning sexual activities. Regulation of American film by state and local governments was supplemented by the Motion Picture Production Code from to 1930 to 1968, in an industry effort to preempt federal regulation. The similar industry-backed Comics Code Authority lasted from 1954 to 2011.

Some laws were motivated not by morality, but concerns over national security. The Office of Censorship suppressed communication of information of military importance during World War II, including by journalists and all correspondence going into or out of the United States. McCarthyism from the 1940s to the 1950s resulted in the suppression of advocacy of Communism, and the Hollywood blacklist. This included some prosecutions under the Smith Act of 1940.

Modern view

As a result of the jurisprudence of the Warren Court in the mid-to-late 20th century, the Court has moved towards a baseline default rule under which freedom of speech is generally presumed to be protected, unless a specific exception applies. Therefore, apart from certain narrow exceptions, the government normally cannot regulate the content of speech. In 1971, in Cohen v. California, Justice John Marshall Harlan II, citing Whitney v. California, emphasized that the First Amendment operates to protect the inviolability of "a marketplace of ideas", while Associate Justice Thurgood Marshall cogently explained in 1972 that:

bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.'

Types of speech

Core political speech

Core political speech is the discussion of political matters, including commentary on governmental laws and policies, discussion of public issues which may be subject to governmental action, commentary on political parties, individual politicians, political candidates and so on. This includes the right to publicly criticize the government and its leaders, potentially in very harsh or offensive terms. Core political speech is the most highly guarded form of speech because of its importance to a functional republic. In Buckley v. Valeo, for instance, the Supreme Court wrote:

Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order 'to assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'

Restrictions placed upon core political speech must weather strict scrutiny analysis or they will be struck down. The Supreme Court has ruled that suffrage itself is not political "speech" and thus can be subjected to significant regulations, and the right to run for office may likewise be restricted. Calling for such restrictions to be altered or abolished, however, is protected under the First Amendment, and certain kinds of suffrage restrictions are already prohibited by other parts of the constitution.

Commercial speech

Main article: Commercial speech

Not wholly outside the protection of the First Amendment is commercial speech, which is speech that "propose a commercial transaction", as defined by Ohralik v. Ohio State Bar Assn. in 1978. Such speech still has expressive value although it is being uttered in a marketplace ordinarily regulated by the state. In 1980, Central Hudson Gas & Electric Corp. v. Public Service Commission held that restrictions of commercial speech are subject to a four-element intermediate scrutiny. Sorrell v. IMS Health Inc. (2011) casts doubt upon whether commercial speech still exists as a distinct type of speech.

Expressive conduct

Expressive conduct, also called "symbolic speech" or "speech acts," is nonverbal conduct that intends to communicate a message. Examples include creating or destroying an object when performed as a statement (such as flag burning in a political protest), silent marches and parades intended to convey a message, clothing bearing meaningful symbols (such as anti-war armbands), body language, messages written in code, ideas and structures embodied as computer code ("software"), mathematical and scientific formulae, and illocutionary acts that convey by implication an attitude, request, or opinion.

Expressive conduct is recognized by federal court decisions as being protected under the First Amendment as a form of speech, although this is not expressly written as such in the document.

For example, seen in light of the First Amendment, computer code is a way to speak about how a problem is solved, using the precise terms a computer might be given as directions, and flag burning is a way to speak or express forcefully of one's views opposing the acts or political position of the relevant country. Significantly, the possibility exists for a single speech act to be protected or not depending upon context and intention. For example, there may be a First Amendment distinction between burning a flag in protest and the same act performed as mere wanton vandalism.

Vague and meaningless speech

Some expressions have an ambiguous, difficult to articulate, unintended, or indiscernible meaning. These include instrumental music, abstract art, and nonsense. These are generally included in protected "speech", but some of the justifications for doing so do not apply. In the 1995 decision Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the U.S. Supreme Court affirmed that the art of Jackson Pollock, the expressionist music of Arnold Schoenberg, and the semi-nonsense poem Jabberwocky are protected. This stands in contrast to, for example, Nazi Germany, which banned what it called "degenerate art" and "degenerate music".

In the 2010 decision Kleinman v. City of San Marcos, the U.S. Fifth Circuit noted a number of cases where artistic expressive elements were mixed with non-speech elements (such as an artistically painted junked car or clothing decorated with graffiti art). In each case, the courts chose to apply full First Amendment protection, but used intermediate scrutiny and upheld the content-neutral government regulations at issue (e.g. no junked cars displayed on public roads, time and place restrictions on sidewalk vendors).

In the case Morse v. Frederick, the defendant claimed the slogan "BONG HiTS 4 JESUS" intended to provoke amusement or disgust but not advocate anything, but the Supreme Court ruled it could be punished under the school speech doctrine because a reasonable person could interpret it as advocating illegal drug use (which was against school policy).

Types of speech restrictions

The Supreme Court has recognized several different types of laws that restrict speech, and subjects each type of law to a different level of scrutiny.

Content-based restrictions

Content-based restrictions "are presumptively unconstitutional regardless of the government's benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech." Restrictions that require examining the content of speech to be applied must pass strict scrutiny.

Content-based restrictions can either discriminate based on viewpoint or subject matter. An example of a law regulating the subject matter of speech would be a city ordinance that forbids all picketing in front of a school except for labor picketing. This law would amount to subject matter discrimination because it favors one subject over another in deciding who it will allow to speak. An example of a law that regulates a speaker's viewpoint would be a policy of a government official who permitted opponents of abortion to speak on government property but banned proponents of legal abortion care because of their views would be engaged in "viewpoint discrimination". Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny, and are usually overturned, unless they fall into one of the court's special exceptions. An example of this is found in the United States Supreme Court's decision in Legal Services Corp. v. Velazquez in 2001. In this case, the Court held that government subsidies cannot be used to discriminate against a specific instance of viewpoint advocacy.

The Court pointed out in Snyder v. Phelps (2011) that one way to ascertain whether a restriction is content-based versus content-neutral is to consider if the speaker had delivered a different message under exactly the same circumstances: "A group of parishioners standing at the very spot where Westboro stood, holding signs that said 'God Bless America' and 'God Loves You,' would not have been subjected to liability. It was what Westboro said that exposed it to tort damages."

Time, place, and manner restrictions

Grayned v. City of Rockford (1972) summarized the time, place, manner concept: "The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Time, place, and manner restrictions must withstand intermediate scrutiny. Note that any regulations that would force speakers to change how or what they say do not fall into this category (so the government cannot restrict one medium even if it leaves open another). Ward v. Rock Against Racism (1989) held that time, place, or manner restrictions must:

Be content neutral
Be narrowly tailored
Serve a significant governmental interest
Leave open ample alternative channels for communication

Freedom of speech is also sometimes limited to so-called free speech zones, which can take the form of a wire fence enclosure, barricades, or an alternative venue designed to segregate speakers according to the content of their message. There is much controversy surrounding the creation of these areas – the mere existence of such zones is offensive to some people, who maintain that the First Amendment makes the entire country an unrestricted free speech zone. Civil libertarians often claim that Free Speech Zones are used as a form of censorship and public relations management to conceal the existence of popular opposition from the mass public and elected officials.

Definition and early history

Time, place, and manner restrictions refer to a legal doctrine enforced under the United States Constitution and Supreme Court. The Merriam-Webster Dictionary defines time, place, and manner restrictions as " restriction on the time, place, or manner of expression that is justified when it is neutral as to content and serves a significant government interest and leaves open ample alternative channels of communication. The goal of time, place and manner restrictions is to regulate speech in a way that still protects freedom of speech.

While freedom of speech is considered by the United States to be a fundamental right, it is not absolute, and therefore subject to restrictions. Time, place, and manner restrictions are relatively self-explanatory. Time restrictions regulate when expression can take place; place restrictions regulate where expression can take place; and manner restrictions regulate how expression can take place. A restriction may occur if someone is protesting loudly in front of someone's house in a neighborhood in the middle of the night, or if someone was sitting in the middle of a busy intersection during rush hour, for example. These actions would cause problems for other people, so restricting speech in terms of time, place, and manner addresses a legitimate societal concern. Restricting this speech would be constitutional because the restrictions are content neutral, meaning they would restrict anyone from saying anything in these situations, no matter what their message is; they are narrowly drawn, meaning the restriction was examined specifically for the case in question to determine how to serve the governmental interest at stake; the restrictions serve a significant governmental interest, meaning other fundamental rights are important to citizens, such as sleeping peacefully at night or people getting to work or home from work; and there are plenty of alternative methods of communicating their message, such as writing an editorial in the paper or moving to the sidewalk at a different time in the day.

One of the earliest mentions of the principle of time, place, and manner restrictions comes in the Cox v. Louisiana (1965) case. Justice Goldberg delivered the opinion and stated, "From these decisions, certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time." From this, the United States Supreme Court doctrine of time, place, and manner restrictions emerged.

Time, place, and manner restrictions and the First Amendment

The First Amendment of the United States Constitution declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." It is easy to mistakenly interpret the First Amendment as granting people the right to say whatever they want, whenever, and wherever they want. However, the United States Supreme Court has interpreted that the First Amendment was never intended to provide such power, because it does not protect speech at all times and in all places. The Court has consistently ruled that the government has the power to impose limits on free speech in regard to its time, place, and manner of delivery. As noted in Clark v. Community for Creative Non-Violence (1984), "... restrictions ... are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." These restrictions are proved constitutional time and time again, in many Supreme Court cases. It is important to understand the limits to the protection of freedom of speech by learning about time, place, and manner restrictions.

Public forum doctrine

Time, place, and manner restrictions are often linked with the public forum doctrine. The Supreme Court has established three types of forums: traditional public forums, designated forums, and nonpublic forums.

Traditional public forums include public areas, such as parks and sidewalks. These areas have the strongest protections under the First Amendment. Although, traditional public forums are still subject to traditional time, place, and manner restrictions, meaning restrictions must be content-neutral, serve a significant governmental interest, and allow for ample alternatives. As noted in United States Postal Service v. Council of Greenburgh Civic Associations (1981), "The First Amendment does not guarantee access to property simply because it is owned or controlled by the government." Justice Marshall in Grayned v. City of Rockford (1972), also noted something similar, saying "The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time." The power of restriction has been seen in many cases, such as in The City of Chicago v. Alexander (2014) case when the Occupy movement was restricted because the park was closed and they were not allowed to protest there during that time. Nevertheless, speech cannot be discriminated against because of the views of the speaker, or the content of their speech. These are generally called View-Point and Content-Based Limitations. Some people argue that time, place, and manner restrictions are relied on too heavily by free speech doctrine, resulting in less free speech allowed in public forums. This view is highly contested. Other people, such as Justice Pierce, who delivered the opinion in The City of Chicago v. Alexander (2014), argue restrictions are only meant to defer speech, in order to limit problems that are put on society.

A designated forum is usually public property the government opens for public expression, such as theatres and state schools. The difference between traditional public forums and designated public forums is in a designated public forum the government may limit access to the area to only certain groups, speakers, or subjects, so long as their rules are consistent. Designated public forums are subject to the same restrictions as traditional public forums, meaning the time, place, and manner restrictions must be content-neutral, serve a governmental interest, and allow ample alternatives. Restrictions in a designated forum can be seen in cases such as Widmar v. Vincent (1981) and City of Madison Joint School District v. Wisconsin PERC (1976).

Nonpublic forums include airport terminals and internal mail systems. In these areas the government has significant control over the speech they allow in these forums because the government acts like a private owner here. This means the government may restrict any speech, as long as the restrictions are reasonable, and do not come in to play because a public official wants the speech restricted. Therefore, content may be restricted because of the subject or the speaker. However, the restrictions must align with the purpose of the area and be viewpoint neutral. This doctrine has been applied to cases such as Perry Education Association v. Perry Local Educators' Association (1983) and Hazelwood School District v. Kuhlmeier (1988).

Time, place, and manner restrictions in Supreme Court decisions

Time, place, and manner restrictions are intended to allow convenience and order to prevail. Some examples of time, place, and manner cases include: Grayned v. Rockford (1972), Heffron v. International Society for Krishna Consciousness, Inc. (1981), Madsen v. Women's Health Center (1994), and recently Hill v. Colorado (2000). Most time, place, and manner cases involve the government as one of the parties in the case.

Because time, place, and manner restrictions put value on convenience and order, there is certain behavior that is not permitted. For example, you cannot yell "fire" in a crowded place when there is no fire. This action would cause an uproar of chaos, and has the potential to cause immediate harm to others. For those reasons, this action would not qualify as a protected right under the First Amendment. As Justice Holmes put it in Schenck v. United States (1918), "Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic." While free speech is important in our society, there are other values in our society that are equally important, such as public order and public peace. The role of time, place, and manner restrictions are balanced with conflicting values in our society.

It is important to understand how judges and other governmental entities decide what speech to limit in regard to time, place, and manner. As previously stated, in order for the Supreme Court and other governmental entities to impose time, place, and manner restrictions, they must decide that the restrictions are content neutral, narrowly tailored, serve a significant governmental interest, and allow other alternative methods of communication. If the restrictions can pass these four requirements, they will align with the First Amendment restriction provisions. Of course, these restrictions will vary from case to case. Ideally, suppressing speech is considered wrong, but in some cases, it is necessary to restrict speech for the greater good of society. It must be decided that the speech is a nuisance in regard to its time, place, or manner of delivery, such as creating a clear and present danger. If there is a problem with the time, place, or manner of delivery of the speech, Congress has the right to limit such speech.

Recent time, place, and manner case: Chicago v. Alexander

As noted in The City of Chicago v. Alexander (2014), "The irst mendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired. A state may therefore impose reasonable restrictions on the time, place or manner of constitutionally protected speech occurring in a public forum." It is permitted to restrict speech in terms of time, place, and manner, so long as there are ample alternatives available. The ample alternative provision can cause confusion for those trying to understand time, place, and manner restrictions. What qualifies as an acceptable alternative? An alternative does not need to be the first choice of a way to communicate, nor does it need to be the same method of communication. That is, if the original method of communication was vocal, an acceptable alternative could be written. In fact, an ample alternative does not even have to reach the same audience as the original speech. In the case of The City of Chicago v. Alexander (2014), an ample alternative to protesting in Grant Park after hours could have been to protest on the sidewalk across the street, or to protest in the morning in the park when it reopened. It is important to remember that time, place, and manner restrictions are not intended to restrict the content of what is being said, instead they restrict when, where, or how the message is being communicated.

As The City of Chicago v. Alexander (2014) case pointed out, in United States v. O'Brien (1968) the court created a test for the content neutral provision. The O'Brien (1968) court declared, "... a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest." Content neutrality is an essential provision to meet because if a law lacks content neutrality due to targeting a particular viewpoint or means of expression, it will often violate other constitutional principles, such as the equal protection clause. Expressing content neutrality is essential in successfully limiting speech through time, place, and manner restrictions in a public forum.

Incidental burdens on speech

See United States v. O'Brien.

Prior restraint

If the government tries to restrain speech before it is spoken, as opposed to punishing it afterwards, it must be able to show that punishment after the fact is not a sufficient remedy, and show that allowing the speech would "surely result in direct, immediate, and irreparable damage to our Nation and its people" (New York Times Co. v. United States). U.S. courts have not permitted most prior restraints since the case of Near v. Minnesota in 1931. However, the 1988 case of Hazelwood v. Kuhlmeier was argued to be a means of prior restraint due to a school principal eliminating content and topics from the school newspaper that was written by students at Hazelwood East High School in St. Louis, Missouri. The U.S. Supreme Court deemed the school was not in violation of students' first amendment rights because the paper was sponsored by the school that upheld rules and regulations about inappropriate articles.

Exclusions

Main article: United States free speech exceptions

Falsehoods

Laws against commercial fraud, counterfeit currency, and perjury have been upheld within certain limits, but some false statements of fact have been protected.

Inciting imminent lawless action

Speech that incites imminent lawless action was originally banned under the weaker clear and present danger test established by Schenck v. United States, but this test has since been overturned by the imminent lawless action test established in Brandenburg v. Ohio.

Fighting words

Inflammatory words that are either injurious by themselves or might cause the hearer to immediately retaliate or breach the peace. Use of such words is not necessarily protected "free speech" under the First Amendment.

True threats

Main article: True threat

See Watts v. United States, Virginia v. Black.

Obscenity

Obscenity, defined by the Miller test by applying contemporary community standards, is a type of speech which is not legally protected. It is speech to which all the following apply: appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. (This is usually applied to more hard-core forms of pornography.)

The 1998 Anti-Obscenity Enforcement Act in Alabama applies to sex toys. The similar 1973 Texas obscenity statute (updated in 2003) was declared unconstitutional in 2008.

Child pornography

See New York v. Ferber.

Torts

Defamation

Main article: United States defamation law

Limits placed on libel and slander attach civil liability and have been upheld by the Supreme Court. The Court narrowed the definition of libel with the case of Hustler Magazine v. Falwell made famous in the movie The People vs. Larry Flynt. New York Times Co. v. Sullivan established the actual malice standard, a high bar for public figure plaintiffs. Making false statements in "matters within the jurisdiction" of the federal government is also a crime.

Invasion of privacy

See Time, Inc. v. Hill.

Intentional infliction of emotional distress

See Hustler Magazine v. Falwell, Texas v. Johnson.

Political spending

Campaign contributions

See Buckley v. Valeo and McCutcheon v. Federal Election Commission.

Independent political expenditures

See Citizens United v. Federal Election Commission

Government speech

The government speech doctrine establishes that the government may censor speech when the speech is its own, leading to a number of contentious decisions on its breadth.

Public employee speech

Statements made by public employees pursuant to their official duties are not protected by the First Amendment from employer discipline as per the case of Garcetti v. Ceballos. This applies also to private contractors that have the government as a client. The First Amendment only protects employees from government employers when speaking publicly outside their official duties in the public interest Pickering v. Board of Ed. of Township High School Dist., updated and clarified by Lane v. Franks. Speech is not protected from private sector disciplinary action.

A number of cases consider speech related to or required by an employer, or speech retaliated against by a third party such as an employer. The case Lane vs. Burrows (previously Lane vs. Franks) considers a number of these matters and summarizes the outcome. A person who testifies in a court, and where that testimony is not part of their employment duties, testifies as a citizen and has First Amendment protection, whereas a person whose speech is an actual part of their duties and is not merely related to their duties may have no such protection.

The issues raised in such cases include the overriding need for persons in court to feel safe to speak the truth, and to in fact speak the truth; the requirement of employers to be able to act if an employee speaks in a manner damaging to the employer; the rights of whistleblowers; the benefit to society if people who know the reality of a matter and are well informed of it, are able to speak of it.

Student speech

Main article: Freedom of speech in schools in the United States

In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court extended broad First Amendment protection to children attending public schools, prohibiting censorship unless there is "substantial interference with school discipline or the rights of others". Several subsequent rulings have affirmed or narrowed this protection. Bethel School District v. Fraser (1986) supported disciplinary action against a student whose campaign speech was filled with sexual innuendo, and determined to be "indecent" but not "obscene". Hazelwood v. Kuhlmeier (1988) allowed censorship in school newspapers which had not been established as forums for free student expression. Guiles v. Marineau (2006) affirmed the right of a student to wear a T-shirt mocking President George W. Bush, including allegations of alcohol and drug use. Morse v. Frederick (2007) supported the suspension of a student holding a banner reading "BONG HiTS 4 JESUS" at a school-supervised event which was not on school grounds. In Lowry v. Watson Chapel School District, an appeals court struck down a school dress code and literature distribution policy for being vague and unnecessarily prohibitive of criticism against the school district.

Such protections also apply to public colleges and universities; for example, student newspapers which have been established as forums for free expression have been granted broad protection by appeals courts.

National security

Military secrets

Publishing, gathering, or collecting national security information is not protected speech in the United States. Information related to "the national defense" is protected even though no harm to the national security is intended or is likely to be caused through its disclosure. Non-military information with the potential to cause serious damage to the national security is only protected from willful disclosure with the requisite intent or knowledge regarding the potential harm. The unauthorized creation, publication, sale, or transfer of photographs or sketches of vital defense installations or equipment as designated by the President is prohibited. The knowing and willful disclosure of certain classified information is prohibited. The unauthorized communication by anyone of "Restricted Data", or an attempt or conspiracy to communicate such data, is prohibited. It is prohibited for a person who learns of the identity of a covert agent through a "pattern of activities intended to identify and expose covert agents" to disclose the identity to any individual not authorized access to classified information, with reason to believe that such activities would impair U.S. foreign intelligence efforts.

In addition to the criminal penalties, the use of employment contracts, loss of government employment, monetary penalties, non-disclosure agreements, forfeiture of property, injunctions, revocation of passports, and prior restraint are used to deter such speech.

Inventions

The Voluntary Tender Act of 1917 gave the Commissioner of Patents the authority to withhold certification from inventions that might harm U.S. national security, and to turn the invention over to the United States government for its own use. It was replaced in 1951 with the Invention Secrecy Act which prevented inventors from publishing inventions or sharing the information. Both attached criminal penalties to subjected inventors. The United States was under a declared state of emergency from 1950–1974, after which peacetime secrecy orders were available.

The government issued between approximately 4,100 to 5,000 orders per year from 1959 to 1974, a peak of 6,193 orders in 1991, and approximately 5,200 per year between from 1991 to 2003. Certain areas of research such as atomic energy and cryptography consistently fall within their gamut. The government has placed secrecy orders on cold fusion, space technology, radar missile systems, and Citizens Band radio voice scramblers, and attempts have been made to extend them to optical-engineering research and vacuum technology.

Nuclear information

The Atomic Energy Act of 1954 automatically classifies "all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy". The government has attempted and failed to prohibit publication of nuclear information, including bomb design, in Scientific American in 1950 and The Progressive in 1979.

Weapons

Pub. L. 106–54 (text) (PDF) of 1999, a bill focused on phosphate prospecting and compensation owed to the Menominee tribe, added 18 U.S.C. § 842(p) making it an offence "to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction" either intending or knowing "that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence". This is in addition to other federal laws preventing the use and dissemination of bombmaking information for criminal purposes. The law was first successfully used against 18-year-old Sherman Martin Austin in 2003, for distribution of information which has since been republished freely. Austin plead guilty to the offense and his conviction was not appealed, so the constitutionality of 18 U.S.C. § 842(p) is still uncertain.

Censorship

Main article: Censorship in the United States

While personal freedom of speech is usually respected, freedom of press, and mass publishing meet with some restrictions. Some of the recent issues include:

United States military censoring blogs written by military personnel
The Federal Communications Commission (FCC) censoring television and radio, citing obscenity, e.g., Howard Stern and Opie and Anthony (though the FCC only has the power to regulate over the air broadcasts and not cable or satellite television or satellite radio) See also Roth v. United States
Scientology suppressing criticism, citing freedom of religion, e.g., Keith Henson

Opponents of anti-BDS laws claim that Israel and its supporters are engaging in lawfare by lobbying for anti-BDS laws that infringe upon the right to free speech.

In 2002, the United States was ranked 17th of 167 countries in the annual worldwide Press Freedom Index of Reporters Without Borders. "The poor ranking of the United States (17th) is mainly because of the number of journalists arrested or imprisoned there. Arrests are often because they refuse to reveal their sources in court. Also, since the September 11 attacks, several journalists have been arrested for crossing security lines at some official buildings." In the 2006 index the United States fell further to 53rd of 168 countries; indeed, "relations between the media and the Bush administration sharply deteriorated" as it became suspicious of journalists who questioned the "War on Terrorism". The zeal of federal courts which, unlike those in 33 U.S. states, refuse to recognize the media's right not to reveal its sources, even threatened journalists whose investigations did not pertain to terrorism. The United States improved, moving up to 48th place in 2007, however, and to 20th in 2010. In the following years, the rank again declined, placing the United States 45th in 2020.

Internet speech, online forums

Main article: Internet censorship in the United States

In a 9–0 decision, the Supreme Court extended the full protection of the First Amendment to the Internet in Reno v. ACLU, a decision that struck down portions of the 1996 Communications Decency Act, a law that prohibited "indecent" online communication. The court's decision extended the constitutional protections given to books, magazines, films, and spoken expression to materials published on the Internet. Congress tried a second time to regulate the content of the Internet with the Child Online Protection Act (COPA). In 2002, the Supreme Court again ruled in American Civil Liberties Union v. Ashcroft that any limitations on the Internet are unconstitutional.

In United States v. American Library Association (2003), the Supreme Court ruled that Congress has the authority to require public schools and libraries receiving e-rate discounts to install content-control software as a condition of receiving federal funding. The justices said that any First Amendment concerns were addressed by the provisions in the Children's Internet Protection Act that permit adults to ask librarians to disable the filters or unblock individual sites.

Private actors, private property, firing employees of private employers

Despite the common misconception that the First Amendment prohibits anyone from limiting free speech, the text of the amendment only prohibits the US Congress (and, by extension, those that derive their powers from Congress) from doing so. Starting with the 1925 U.S. Supreme Court decision Gitlow v. New York, this prohibition has been incorporated to apply to state and local governments as well, based on the text of the Fourteenth Amendment.

A major issue in freedom of speech jurisprudence has been whether the First Amendment should be interpreted to merely run against these state actors, or whether it can run against private actors as well. Specifically, the issue is whether private landowners should be permitted to use the machinery of government to exclude others from engaging in free speech on their property (which means balancing the speakers' First Amendment rights against the Takings Clause). The right of freedom of speech within private shopping centers owned by others has been vigorously litigated under both the federal and state Constitutions, most notably in the cases Lloyd Corp. v. Tanner (1972) and Pruneyard Shopping Center v. Robins (1980).

Social media platforms

Given the dispute between the Fifth and Eleventh circuits, it is likely that the Supreme Court will determine the proper First Amendment classification for social media. Privately owned social media platforms such as Facebook and Twitter are not bound by the First Amendment. Nevertheless, social media platforms have banned or censored users at the request of government staff and elected officials. Platforms have developed regulations and procedures of their own, attempting to balance free expression by their users against the moderation or removal of objectionable or harmful speech. In the course of developing private policies and procedures, they have in several cases employed concepts or standards developed by U.S. courts in free speech cases, such as the public figure doctrine developed since New York Times v. Sullivan.

Some observers have decried an erosion of free speech due to widespread use of the Internet and social media, which has allowed large groups of people who disapprove of particular speech have been able to swarm upon certain speakers and harass them with death and rape threats, send SWAT teams by making false reports to police, trigger boycotts of businesses, and in at least one case motivate a shooting. Targets have included a Massachusetts businessman who was seen in a photo apparently supporting Donald Trump, female video game designers and commentators, a diner where an anti-Trump employee made a negative comment to a pro-Trump customer, a public relations executive who tweeted an offensive joke before boarding a plane, and even victims of the 2017 Las Vegas shooting accused by anti-gun-control activists of faking the event.

College campuses

First Amendment protections apply to public colleges and universities in the United States, significantly limiting the ability of school administrations or government bodies to impose restrictive speech codes at public institutions of higher education. However, much of the controversy over free expression in American colleges and universities has dealt with other questions of institutional policies, questions of academic freedom, and the climate of opinion on campus at both public and private institutions.

In July 2014, the University of Chicago released the "Chicago Statement," a free speech policy statement designed to combat censorship on campus. This statement was later adopted by a number of top-ranked universities including Princeton University, Washington University in St. Louis, Johns Hopkins University, and Columbia University. The Foundation for Individual Rights in Education (FIRE), a nonprofit legal advocacy group that focuses on campus speech issues, publishes annual "College Free Speech Rankings" based on their comparative assessment of campus speech policies, tolerance for controversial speakers, administrative support for free speech, and surveys of student attitudes towards speech on campus. Since 2011, the group has also published a list of the “worst colleges for free speech.”

In the 1980s-1990s and the 2010s-2020s, public debate over campus speech policies and the status of free speech on campus often turned on the question of whether American campuses provided an open or a hostile environment for the discussion of conservative or right-wing views, or for critical debate or "heterodox" approaches to liberal politics or social justice activism. Journalists such as David Brooks (commentator) and Robby Soave have criticized student activists' efforts to heckle or shut down controversial invited speakers, which they argue amounts to a heckler's veto on campus speech. The sociologist Musa al-Gharbi (writing for Heterodox Academy) and the legal advocate Greg Lukianoff (president of FIRE) have argued that college administrations have chilled or limited speech on campus through the partisan use of censorship and disciplinary proceedings that infringe on academic freedom. Other commentators such as Vox's Zack Beauchamp have disputed the claim that American college campuses are facing a "free-speech crisis," arguing that "incidents of speech by students or professors being suppressed are relatively rare," and are not directed along consistent partisan lines. Chris Quintana, writing in The Chronicle of Higher Education, argued that administration threats to academic freedom were in fact more likely to target controversial liberal professors than to be directed against conservative faculty.

Protections for Employees of Private Companies

Connecticut makes it illegal (under Connecticut General Statutes Section 31-51q) for an employer to fire an employee because of any exercise of that employee’s First Amendment rights, including the right to free speech, as long as the activity does not substantially or materially interfere with their job duties or their working relationship.

In the early 90s, the State of New York added Section 201-d to New York Labor Law. This statute prohibits discrimination on the basis of an employee’s political and recreational activities outside of working hours, off of the employer’s premises and without the use of the employer’s equipment. However, the statute permits an employer to take adverse action if the employee’s speech creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest.

Colorado’s lawful off-duty conduct statute C.R.S. § 24-34-402.5 prohibits an employer from wrongfully terminating an employee because the employee engaged in any lawful activity off the premises of the employer during nonworking hours. There is an exception however: the statute authorizes employers to terminate employees for off-duty activities that are reasonably and rationally related to their employment. These are activities that are inherently connected to the individual’s employment and emanate from the employee’s job duties and the company’s business interests.

California goes further than Colorado, Connecticut and New York by generally restricting an employer’s ability to fire or demote employees for voicing views seen as controversial or even hateful, between or after work hours and away from work premises. Unlike the just mentioned three states, there is no statutory exception to this rule. California Labor Code section 96(k), allows California officials (specifically, the state labor commissioner) to represent people who were fired due to lawful conduct occurring during nonworking hours away from the employer’s premises, which includes the exercise of free speech. This is combined with Labor Code section 98.6(a), whereby an employer cannot fire an employee or in any manner discriminate, retaliate, or take any adverse action against any employee because they engaged in any conduct delineated under 96(k).

California law does not completely prohibit the termination of California employees for voicing their opinions after-hours, if this expression of speech is coupled with expressly illegal activity. One such test of 96(k) occurred with the 2021 Capitol Riots, where some California-based participants were laid off due to joining the storming of the capital. 96(k) did not apply to them due the illegality of conduct related to storming the capital.

California state courts have thus far not had to interpret 96(k)/98.6(a)-related cases when it comes to free speech. So far, there have been judge rulings on cases relating to managers dating their subordinates, destruction of company property, and employees not devoting enough time to their jobs.

References

"freedom of speech In: The American Heritage® Dictionary of the English Language, Fifth Edition, 2020". Houghton Mifflin Harcourt Publishing Company. Archived from the original on July 28, 2020. Retrieved July 28, 2020.
"freedom of speech". Merriam-Webster. Archived from the original on February 29, 2020. Retrieved July 28, 2020.
"free speech". Cambridge Advanced Learner's Dictionary. Archived from the original on September 16, 2019. Retrieved July 28, 2020.
"freedom of speech". Dictionary.com. Archived from the original on June 16, 2019. Retrieved July 28, 2020.
"Riley v. National Federation of the Blind, 487 U.S. 781 (1988), at 796 - 797". Justia US Supreme Court Center. Retrieved July 28, 2020.
Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2661 (Supreme Court of the United States 2011).
Dunn, Christopher (April 28, 2009). "Column: Applying the Constitution to Private Actors (New York Law Journal)". New York Civil Liberties Union. Retrieved January 27, 2017.
Berman-Gorvine, Martin (May 19, 2014). "Employer Ability to Silence Employee Speech Narrowing in Private Sector, Attorneys Say". Bloomberg BNA. Retrieved March 1, 2019.
Mart, Susan (2003). "The Right to Receive Information". Law Library Journal. 95 (2): 175–189. Retrieved December 9, 2021.
Citizens United v. Federal Election Com'n, 130 S. Ct. 876, 896-897 (Supreme Court of the United States 2010).
Snyder v. Phelps, 131 S. Ct. 1207 (Supreme Court of the United States 2011).
Keighley, Jennifer (2012). "Can You Handle the Truth? Compelled Commercial Speech and the First Amendment". Journal of Constitutional Law. 15 (2): 544–550. Retrieved January 27, 2017.
Abood v. Detroit Board of Education, 431 U.S. 209 (Supreme Court of the United States 1977).
Riley v. National Federation of Blind of NC, Inc., 487 U.S. 781 (Supreme Court of the United States 1988).
Volokh, Eugene (2016). "The 'Speech Integral to Criminal Conduct' Exception" (PDF). Cornell Law Review. 101: 981. Retrieved August 6, 2017.
United States v. Alvarez, 132 S. Ct. 2537 (Supreme Court of the United States 2012).
Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (Supreme Court of the United States 2011).
Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660 (Supreme Court of the United States 2004).
"Personal Narratives from the Virtual Jamestown Project, 1575–1705". Etext.lib.virginia.edu. Archived from the original on June 21, 2002. Retrieved September 6, 2008.
Larry D. Eldridge, A Distant Heritage: The Growth of Free Speech in Early America, New York: NYU Press, 1994.
Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972).
Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978).
Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 180 L. Ed. 2d 544, 2011 ILRC 2067, 32 ILRD 281 (2011), Court Opinion, Text.
^ Lee Tien (2000). "Publishing Software as a Speech Act". Berkeley Technology Law Journal. 15 (2): 629–712. doi:10.15779/Z38FQ1W. JSTOR 24116702.
^ "Ars Technica: Is code free speech? - Page 2 (4/99)". archive.arstechnica.com. Retrieved June 19, 2017.
Mark V. Tushnet; Alan K. Chen; Joseph Blocher (2017). Free Speech Beyond Words: The Surprising Reach of the First Amendment. NYU Press. ISBN 978-1479880287.
"FindLaw's United States Fifth Circuit case and opinions". Findlaw.
Sable Communications v. FCC, 492 U.S. 115 (1989) Sable Communications of California v. Federal Communications Commission. No. 88-515. Argued April 19, 1989. Decided June 23, 1989
Grayned v. City of Rockford, 408 U.S. 104 (1972).
Ward v. Rock Against Racism, 491 U.S. 781 (1989).
^ Secret Service Ordered Local Police to Restrict Anti-Bush Protesters at Rallies, ACLU Charges in Unprecedented Nationwide Lawsuit. ACLU press release, September 23, 2003
"Time, Place, or Manner Restriction". Merriam-Webster Law Dictionary.
^ Chemerinsky, Erwin (2006). Constitutional Law. New York: ASPEN. pp. 1131–1134. ISBN 9780735557871.
^ "Time, Place, and Manner Restrictions". West's Encyclopedia of American Law.
"Cox v. State of Louisiana 379 U.S. 536". Legal Information Institute Cornell University Law School. 1965.
US Constitution Amendment 1. 1791.
^ City of Chicago v. Alexander IL App (1st) 122858. 2014.
^ Clark v. Community for Creative Non-Violence 468 US 288. 1984.
^ "Forums". Legal Information Institute. Cornell University Law School.
O'Neill, Kevin (1999). "Disentangling the Law of Public Protest". Loyola Law Review.
USPS v. Council of Greenburgh Civic Assns., 453 U.S. 114. 1981.
Grayned v. City of Rockford, 408 U.S. 104. 1972.
Inazu, John (2015). "The First Amendment's Public Forum". William & Mary Law Review. 56 (4).
^ O'Neill, Kevin (1999). "Disentangling the Law of Public Protest". Loyola Law Review. 45: 411–526.
^ "The Public Forum". Justia US Law.
^ Schenck v. United States 249 U.S. 47. 1918.
"Facts and Case Summary - Hazelwood v. Kuhlmeier". United States Courts.
"Fighting Words". Cornell University Law School. Retrieved April 22, 2014.
"First Amendment Lawyer – Basic First Amendment & Censorship Information". Firstamendment.com. Retrieved August 4, 2012.
https://www.supremecourt.gov/opinions/13pdf/13-483_9o6b.pdf
Blocher, Joseph (April 2014). "Nonsense and the freedom of speech: what meaning means for the First Amendment". Duke Law Journal. 63 (7). ISSN 0012-7086. SSRN 2209362.
"Appeals Court Sides with ACLU, Finds Watson Chapel Students' Free Speech Rights Violated | American Civil Liberties Union". Aclu.org. September 2, 2008. Retrieved August 4, 2012.
Euben, Donna R. "Court Restricts Free Speech for College Students". AAUP. Archived from the original on December 3, 2012. Retrieved August 4, 2012.
"Federal Court Says Ban on Alcohol-Related Advertising in College Publications Violates Free Speech | American Civil Liberties Union". Aclu.org. April 1, 2008. Retrieved August 4, 2012.
Protection of National Security Information (PDF), Congressional Research Service, June 30, 2006, p. 2
^ CRS 2006, p. 1.
CRS 2006, pp. 6–7.
CRS 2006, p. 7.
CRS 2006, p. 9.
CRS 2006, p. 10.
CRS 2006, p. 11-13.
Voluntary Tender Act, Pub. L. 65–80, 40 Stat. 394, enacted October 6, 1917
Donohue 2005, p. 274.
Donohue 2005, p. 275.
Donohue 2005, pp. 274–275.
Proclamation No. 2914, 15 FR 9029 (December 19, 1950).
National Emergencies Act of 1976 (terminating "existing declared emergencies" two years after enactment of the Act).
^ Donohue 2005, p. 276.
^ Donohue 2005, p. 277.
^ Donohue 2005, p. 279.
United States v. The Progressive
Pub. L. 106–54 (text) (PDF), 113 Stat. 398, enacted August 17, 1999
Donohue 2005, pp. 285–286.
Donohue 2005, pp. 282–283.
Donohue 2005, p. 287.
Sobel 2019: After the package was introduced, critics voiced strong concern. The ACLU and Sens. Bernie Sanders, I-Vt., and Rand Paul, R-Ky., criticized the bill on the grounds that economic boycotts are protected by the First Amendment. Sen. Rubio and newly elected Rep. Rashida Tlaib, D-Mich., also traded barbs on Twitter over the constitutionality of laws restricting boycotts of Israel.
"Press Freedom Index 2010 – Reporters Without Borders". En.rsf.org. Archived from the original on November 24, 2010. Retrieved August 4, 2012.
"Trump-era hostility toward press persists". rsf.org. Retrieved April 21, 2020.
McGregor, Jena (August 8, 2017). "The Google memo is a reminder that we generally don't have free speech at work". Washington Post. Retrieved March 1, 2019.
Willingham, AJ (September 6, 2018). "The First Amendment doesn't guarantee you the rights you think it does". CNN. Retrieved March 1, 2019.
"How Should Courts Treat Social Media Platforms Under the First Amendment?". University of Cincinnati Law Review Blog. October 6, 2022. Retrieved March 9, 2024.
"Facebook v. Sullivan: Public Figures and Newsworthiness in Online Speech - Article by Thomas E. Kadri & Kate Klonick". Southern California Law Review. November 1, 2019. Retrieved April 26, 2020.
See Pizzagate conspiracy theory
Wu, Tim (October 27, 2017). "Opinion | How Twitter Killed the First Amendment (Published 2017)". The New York Times.
"Businessman Kills His Brand With a Single White House Appearance". www.msn.com.
See Gamergate controversy for details
"Angry pro-Trump Twitter mob still targeting Mount Airy diner". November 30, 2016.
"The shameful shaming of Twitter's digital mobs". theweek.com. February 17, 2015.
"Las Vegas mass shooting victims accused of 'acting' by conspiracy theorists". www.yahoo.com. October 30, 2017.
Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).
"Chicago Statement: University and Faculty Body Support". FIRE. August 15, 2019. Archived from the original on August 27, 2019. Retrieved August 26, 2019.
Lindsay, Tom. "35 Universities Adopt 'The Chicago Statement' On Free Speech--1,606 To Go". Forbes. Archived from the original on August 26, 2019. Retrieved August 26, 2019.
"The Worst Campus in America for Free Speech". RealClearEducation.com. Retrieved March 1, 2022.
"Free Speech Rankings". rankings.thefire.org. Retrieved March 1, 2022.
"Stanford, Georgetown, U. of Florida listed among 10 'worst free speech colleges' in U.S." UPI.com. Retrieved March 1, 2022.
David Brooks, "Understanding Student Mobbists," New York Times, March 8, 2018.
Robby Soave, "Students at Lewis and Clark College Shouted Down Christina Hoff Sommers," Reason, March 6, 2018.
Musa al-Gharbi, "Vox's Consistent Errors on Campus Speech, Explained." Heterodox Academy, August 16, 2018.
Greg Lukianoff, Unlearning Liberty: Campus Censorship and the End of American Debate (Encounter Books, 2014).
Beauchamp, Zack (August 31, 2018). "The myth of a campus free speech crisis". Vox. Archived from the original on March 1, 2019. Retrieved February 28, 2019.
Quintana, Chris (April 30, 2018). "The Real Free-Speech Crisis Is Professors Being Disciplined for Liberal Views, a Scholar Finds". The Chronicle of Higher Education. ISSN 0009-5982. Archived from the original on March 1, 2019. Retrieved February 28, 2019.
"Connecticut Workplace Freedom of Speech Lawyer". Hayber, McKenna & Dinsmore. Retrieved September 13, 2023.
"NYS Open Legislation | NYSenate.gov". www.nysenate.gov. Retrieved September 14, 2023.
Jennifer (March 28, 2023). "Can Private Employees Be Fired for Out-of-Office Political Speech?". New York State Bar Association. Retrieved September 14, 2023.
"Exploring Potential Liability under Colorado's Lawful Off-Duty Activity Statute in 2020". Employment Law Spotlight. Retrieved January 17, 2024.
"Termination of an Employee for Lawful Off Duty Conduct" (PDF). Shepphard Mullins. Retrieved September 13, 2023.
"Law section". leginfo.legislature.ca.gov. Retrieved September 13, 2023.
"Law section". leginfo.legislature.ca.gov. Retrieved September 13, 2023.
"Can Employers Fire Rioters? Employers' Rights in Policing Employee Off-Duty Conduct and Employment Law Consequences of the Capitol Riots". Ogletree Deakins. Retrieved September 13, 2023.
"Expert: Rioters can legally be fired for participation in Capitol breach". ABC 10 News San Diego KGTV. January 8, 2021. Retrieved September 13, 2023.
^ Wahlander, Scott P. Mallery, Michael (September 28, 2020). "Employer "Dislike" Button—Disciplining Employees For Noxious Social Media Posts". California Peculiarities Employment Law Blog. Retrieved September 13, 2023.{{cite web}}: CS1 maint: multiple names: authors list (link)

External links

A Time for Censorship, a Time for Freedom – Americans' freedom of speech within the internet and how it is being put in jeopardy.(Webpage removed)
First Amendment Library entry on Freedom of Expression (links to all of the Supreme Court's free expression cases)(webpage removed)
Congressional Research Service (CRS) Reports regarding Freedom of Speech Archived February 3, 2009, at the Wayback Machine(webpage removed)
Learn more about First Amendment from attorney Marс Randazza and his works.(working as of 4/23/2018)

Constitution of the United States

Articles

Amendments

Bill of Rights	1 2 3 4 5 6 7 8 9 10
1795–1804	11 12
Reconstruction	13 14 15
20th century	16 17 18 19 20 21 22 23 24 25 26 27

Formation

Interpretation

Convention President	George Washington
New Hampshire	John Langdon Nicholas Gilman
Massachusetts	Nathaniel Gorham Rufus King
Connecticut	William Samuel Johnson Roger Sherman
New York	Alexander Hamilton
New Jersey	William Livingston David Brearley William Paterson Jonathan Dayton
Pennsylvania	Benjamin Franklin Thomas Mifflin Robert Morris George Clymer Thomas Fitzsimons Jared Ingersoll James Wilson Gouverneur Morris
Delaware	George Read Gunning Bedford Jr. John Dickinson Richard Bassett Jacob Broom
Maryland	James McHenry Daniel of St. Thomas Jenifer Daniel Carroll
Virginia	John Blair James Madison
North Carolina	William Blount Richard Dobbs Spaight Hugh Williamson
South Carolina	John Rutledge Charles Cotesworth Pinckney Charles Pinckney Pierce Butler
Georgia	William Few Abraham Baldwin
Convention Secretary	William Jackson

Display
and legacy

U.S. Supreme Court Freedom of Speech Clause case law

First Amendment to the United States Constitution

Unprotected speech

Clear and present danger and imminent lawless action	Schenck v. United States (1919) Debs v. United States (1919) Abrams v. United States (1919) Gitlow v. New York (1925) Whitney v. California (1927) Fiske v. Kansas (1927) Dennis v. United States (1951) Communist Party v. Subversive Activities Control Bd. (1955; 1961) Yates v. United States (1957) Bond v. Floyd (1966) Brandenburg v. Ohio (1969) Hess v. Indiana (1973)
Defamation and false speech	New York Times Co. v. Sullivan (1964) Hustler Magazine v. Falwell (1988) United States v. Alvarez (2012) Susan B. Anthony List v. Driehaus (2014)
Fighting words and the heckler's veto	Cantwell v. Connecticut (1940) Chaplinsky v. New Hampshire (1942) Terminiello v. City of Chicago (1949) Feiner v. New York (1951) Gregory v. City of Chicago (1969) Cohen v. California (1971) Nat'l Socialist Party v. Village of Skokie (1977) R.A.V. v. City of St. Paul (1992) Snyder v. Phelps (2011)
True threats and threatening the President of the United States	Virginia v. Black (2003) Elonis v. United States (2015) Counterman v. Colorado (2023)
Obscenity	Rosen v. United States (1896) Roth v. United States (1957) One, Inc. v. Olesen (1958) Smith v. California (1959) Marcus v. Search Warrant (1961) Manual Enterprises, Inc. v. Day (1962) Jacobellis v. Ohio (1964) Quantity of Books v. Kansas (1964) Ginzburg v. United States (1966) Memoirs v. Massachusetts (1966) Redrup v. New York (1967) Ginsberg v. New York (1968) Stanley v. Georgia (1969) United States v. Thirty-seven Photographs (1971) Kois v. Wisconsin (1972) Miller v. California (1973) Paris Adult Theatre I v. Slaton (1973) United States v. 12 200-ft. Reels of Film (1973) Jenkins v. Georgia (1974) Erznoznik v. City of Jacksonville (1975) Young v. American Mini Theatres, Inc. (1976) People v. Freeman (Cal. 1988) United States v. X-Citement Video, Inc. (1994) Reno v. ACLU (1997) United States v. Playboy Entertainment Group, Inc. (2000) City of Los Angeles v. Alameda Books, Inc. (2002) Ashcroft v. American Civil Liberties Union (2002) United States v. American Library Ass'n (2003) United States v. Williams (2008) United States v. Stevens (2010) Brown v. Entertainment Merchants Ass'n (2011) FCC v. Fox Television Stations, Inc. (2012) Free Speech Coalition v. Paxton (2025)
Speech integral to criminal conduct	New York v. Ferber (1982) Osborne v. Ohio (1990) Ashcroft v. Free Speech Coalition (2002) United States v. Hansen (2023)

Strict scrutiny
Holder v. Humanitarian Law Project (2010) Williams-Yulee v. Florida Bar (2015)

Overbreadth and Vagueness doctrines
Smith v. Goguen (1974) Board of Airport Commissioners v. Jews for Jesus (1987) Minnesota Voters Alliance v. Mansky (2018)

Symbolic speech versus conduct
Stromberg v. California (1931) United States v. O'Brien (1968) Cohen v. California (1971) Spence v. Washington (1974) Clark v. Community for Creative Non-Violence (1984) Dallas v. Stanglin (1989) Texas v. Johnson (1989) United States v. Eichman (1990) Barnes v. Glen Theatre (1991) City of Erie v. Pap's A. M. (2000) Virginia v. Black (2003)

Content-based restrictions
Lamont v. Postmaster General (1965) Metromedia, Inc. v. San Diego (1981) Boos v. Barry (1988) Simon & Schuster, Inc. v. Crime Victims Board (1991) R.A.V. v. City of St. Paul (1992) Reed v. Town of Gilbert (2015) Barr v. American Association of Political Consultants (2020) City of Austin v. Reagan National Advertising of Austin, LLC (2022)

Content-neutral restrictions

Schneider v. New Jersey (1939)
Renton v. Playtime Theatres, Inc. (1986)
City of Ladue v. Gilleo (1994)
Packingham v. North Carolina (2017)
TikTok, Inc. v. Garland (2025)

In the public forum	Davis v. Massachusetts (1897) Hague v. CIO (1939) Thornhill v. Alabama (1940) Martin v. City of Struthers (1943) Niemotko v. Maryland (1951) Edwards v. South Carolina (1963) Cox v. Louisiana (1965) Brown v. Louisiana (1966) Adderley v. Florida (1966) Carroll v. Town of Princess Anne (1968) Coates v. City of Cincinnati (1971) Org. for a Better Austin v. Keefe (1971) Clark v. Community for Creative Non-Violence (1984) Frisby v. Schultz (1988) Ward v. Rock Against Racism (1989) Burson v. Freeman (1992) Madsen v. Women's Health Center, Inc. (1994) Schenck v. Pro-Choice Network of Western New York (1997) Hill v. Colorado (2000) McCullen v. Coakley (2014)
Designated public forum	Widmar v. Vincent (1981) Rosenberger v. Univ. of Virginia (1995) Uzuegbunam v. Preczewski (2021)
Nonpublic forum	Lehman v. Shaker Heights (1974) Perry Education Association v. Perry Local Educators' Association (1983) Cornelius v. NAACP Legal Defense Fund (1985) Arkansas Educational Television Commission v. Forbes (1997) Minnesota Voters Alliance v. Mansky (2018)

Compelled speech

Minersville School District v. Gobitis (1940)
West Virginia State Board of Ed. v. Barnette (1943)
Miami Herald Publishing Co. v. Tornillo (1974)
Wooley v. Maynard (1977)
Pruneyard Shopping Center v. Robins (1980)
Pacific Gas & Electric Co. v. Public Utilities Comm'n of California (1986)
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)
Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006)
National Institute of Family and Life Advocates v. Becerra (2018)
303 Creative LLC v. Elenis (2023)
Moody v. NetChoice, LLC (2024)

Compelled subsidy of others' speech

International Ass'n of Machinists v. Street (1961)
Abood v. Detroit Board of Education (1977)
Minnesota Board for Community Colleges v. Knight (1984)
Communications Workers of America v. Beck (1988)
Keller v. State Bar of California (1990)
Lehnert v. Ferris Faculty Ass'n (1991)
Board of Regents of the Univ. of Wisconsin System v. Southworth (2000)
Johanns v. Livestock Marketing Ass'n (2005)
Davenport v. Washington Education Ass'n (2007)
Locke v. Karass (2008)
Knox v. SEIU, Local 1000 (2012)
Harris v. Quinn (2014)
Friedrichs v. California Teachers Association (2016)
Janus v. AFSCME (2018)

Government grants and subsidies
Regan v. Taxation with Representation of Washington (1983) Rust v. Sullivan (1991) National Endowment for the Arts v. Finley (1998) Legal Services Corp. v. Velazquez (2001) USAID v. Alliance for Open Society International I (2013) USAID v. Alliance for Open Society International II (2020)

Government speech
Pleasant Grove City v. Summum (2009) Walker v. Texas Div., Sons of Confederate Veterans (2015) Matal v. Tam (2017) Iancu v. Brunetti (2019) Houston Community College System v. Wilson (2022) Shurtleff v. City of Boston (2022) Vidal v. Elster (2024)

Loyalty oaths
American Communications Ass'n v. Douds (1950) Garner v. Board of Public Works (1951) Speiser v. Randall (1958) Keyishian v. Board of Regents (1967) Communist Party of Indiana v. Whitcomb (1974)

School speech

Minersville School District v. Gobitis (1940)
West Virginia State Board of Education v. Barnette (1943)
Tinker v. Des Moines Ind. Community School Dist. (1969, substantial disruption)
Healy v. James (1972)
Island Trees School District v. Pico (1982)
Bethel School District v. Fraser (1986)
Hazelwood School District v. Kuhlmeier (1988)
Westside Community Board of Ed. v. Mergens (1990)
Rosenberger v. Univ. of Virginia (1995)
Brentwood Academy v. Tennessee Secondary School Athletic Ass'n (2001)
Morse v. Frederick (2007)
Uzuegbunam v. Preczewski (2021)
Mahanoy Area School District v. B.L. (2021)

Public employees

Pickering v. Board of Education (1968)
Perry v. Sindermann (1972)
Arnett v. Kennedy (1974)
Elrod v. Burns (1976)
Mt. Healthy City School Dist. Board of Ed. v. Doyle (1977)
Givhan v. Western Line Consol. School Dist. (1979)
Connick v. Myers (1983)
Rankin v. McPherson (1987)
Rutan v. Republican Party of Illinois (1990)
Waters v. Churchill (1994)
United States v. National Treasury Employees Union (1995)
Brentwood Academy v. Tennessee Secondary School Athletic Ass'n (2001)
Garcetti v. Ceballos (2006)
Borough of Duryea v. Guarnieri (2011)
Lane v. Franks (2014)
Heffernan v. City of Paterson (2016)
Kennedy v. Bremerton School Dist. (2022)

Hatch Act and similar laws
Ex parte Curtis (1882) United Public Workers v. Mitchell (1947) U.S. Civil Service Comm'n v. National Ass'n of Letter Carriers (1973) Broadrick v. Oklahoma (1973)

Licensing and restriction of speech
Mutual Film Corp. v. Industrial Comm'n of Ohio (1915) Cox v. New Hampshire (1941) Murdock v. Pennsylvania (1943) Kunz v. New York (1951) Joseph Burstyn, Inc. v. Wilson (1952) Kingsley Books, Inc. v. Brown (1957) NAACP v. Button (1963) Freedman v. Maryland (1965) Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982) Forsyth County v. Nationalist Movement (1992)

Commercial speech

Valentine v. Chrestensen (1942)
Rowan v. U.S. Post Office Dept. (1970)
Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973)
Lehman v. Shaker Heights (1974)
Goldfarb v. Virginia State Bar (1975)
Bigelow v. Virginia (1975)
Virginia State Pharmacy Bd. v. Virginia Citizens Consumer Council (1976)
Linmark Assoc., Inc. v. Township of Willingboro (1977)
Carey v. Population Services International (1977)
Bates v. State Bar of Arizona (1977)
In re Primus (1978)
Ohralik v. Ohio State Bar Assn. (1978)
Friedman v. Rogers (1979)
Consol. Edison Co. v. Public Serv. Comm'n (1980)
Central Hudson Gas & Electric Corp. v. Public Service Commission (1980)
Metromedia, Inc. v. San Diego (1981)
Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982)
Zauderer v. Off. of Disciplinary Counsel of Supreme Court of Ohio (1985)
Pacific Gas & Electric Co. v. Public Utilities Comm'n of California (1986)
Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico (1986)
San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee (1987)
City of Cincinnati v. Discovery Network, Inc. (1993)
Lebron v. National Railroad Passenger Corp. (1995)
Florida Bar v. Went For It, Inc. (1995)
44 Liquormart, Inc. v. Rhode Island (1996)
Lorillard Tobacco Co. v. Reilly (2001)
Johanns v. Livestock Marketing Ass'n (2005)
Sorrell v. IMS Health Inc. (2011)
Expressions Hair Design v. Schneiderman (2017)
Matal v. Tam (2017)
Iancu v. Brunetti (2019)
Barr v. American Association of Political Consultants (2020)
Vidal v. Elster (2024)

Campaign finance and political speech

Buckley v. Valeo (1976)
First National Bank of Boston v. Bellotti (1978)
Citizens Against Rent Control v. City of Berkeley (1981)
FEC v. National Conservative PAC (1985)
FEC v. Massachusetts Citizens for Life (1986)
Austin v. Michigan Chamber of Commerce (1990)
Colorado Republican Federal Campaign Committee v. FEC (1996)
Nixon v. Shrink Missouri Government PAC (2000)
Republican Party of Minnesota v. White (2002)
McConnell v. FEC (2003)
Randall v. Sorrell (2006)
FEC v. Wisconsin Right to Life, Inc. (2007)
Davis v. FEC (2008)
Citizens United v. FEC (2010)
Nevada Commission on Ethics v. Carrigan (2011)
Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (2011)
American Tradition Partnership, Inc. v. Bullock (2012)
McCutcheon v. FEC (2014)
Williams-Yulee v. Florida Bar (2015)
Thompson v. Hebdon (2019)
FEC v. Ted Cruz for Senate (2022)

Anonymous speech
NAACP v. Alabama (1958) Bates v. City of Little Rock (1960) Buckley v. Valeo (1976) Brown v. Socialist Workers '74 Campaign Committee (1982) McIntyre v. Ohio Elections Comm'n (1995) Doe v. Reed (2010) Americans for Prosperity Foundation v. Bonta (2021)

State action
Marsh v. Alabama (1946) Lloyd Corp. v. Tanner (1972) Manhattan Community Access Corp. v. Halleck (2019) Lindke v. Freed (2024) Murthy v. Missouri (2024)

Official retaliation
Hartman v. Moore (2006) Wood v. Moss (2014) Lozman v. City of Riviera Beach (2018) Nieves v. Bartlett (2019) Egbert v. Boule (2022) Gonzalez v. Trevino (2024) National Rifle Association of America v. Vullo (2024)

Boycotts
NAACP v. Claiborne Hardware Co. (1982)

Prisons
Jones v. North Carolina Prisoners' Labor Union (1977) Turner v. Safley (1987) Shaw v. Murphy (2001) Beard v. Banks (2006)

v t e Social issues in the United States
Economy	Abusive supervision Communications Cost of living Farmers' suicides Labor Land reforms Pensions Poverty Remittances Slum Clearance Standard of living Street vendors Transport Urbanization Unemployment Widening income gap
Education	Educational inequality Higher education bubble Literacy
Environment	Conservation Climate change Natural disasters Pollution Water supply and sanitation
Family	Cohabitation Domestic violence Extended family Family planning Infertility Martial rape Nuclear family Polygamy
Children	Abortion Child abuse Child labor Child marriage Child prostitution Child trafficking Street children
Women	Acid attacks Women's health Feminism Menstrual taboo Prostitution Rape Sexism
Racism and racial inequality	African Americans Environmental racism Interminority racism Islamophobia Mass racial violence Native Americans Race and health Racial achievement gap Racial profiling Racial wage gap
Crime	Corruption Human trafficking Illegal immigration Organized crime prison overcrowding Prison rape Race and crime Terrorism Vigilantism Cybercrime
Health	HIV/AIDS Malnutrition Obesity Suicide
Media	Censorship Internet Films about social issues Freedom of speech Fake news Post-truth Truthiness
Discrimination	Ableism Age discrimination Caste discrimination Family responsibilities discrimination Housing discrimination Institutionalized discrimination Religious discrimination
Other issues	Colorism Extremism Gambling Plutocracy Political apathy Sexuality LGBTQ Human rights Prohibition Police brutality

Categories:

History

England

Colonies

First Amendment ratification

Alien and Sedition Acts

Censorship era

Modern view

Types of speech

Core political speech

Commercial speech

Expressive conduct

Vague and meaningless speech

Types of speech restrictions

Content-based restrictions

Time, place, and manner restrictions

Definition and early history

Time, place, and manner restrictions and the First Amendment

Public forum doctrine

Time, place, and manner restrictions in Supreme Court decisions

Recent time, place, and manner case: Chicago v. Alexander

Incidental burdens on speech

Prior restraint

Exclusions

Falsehoods

Inciting imminent lawless action

Fighting words

True threats

Obscenity

Child pornography

Torts

Defamation

Invasion of privacy

Intentional infliction of emotional distress

Political spending

Campaign contributions

Independent political expenditures

Government speech

Public employee speech

Student speech

National security

Military secrets

Inventions

Nuclear information

Weapons

Censorship

Internet speech, online forums

Private actors, private property, firing employees of private employers

Social media platforms

College campuses

Protections for Employees of Private Companies

See also

References

Further reading

External links