Q. What is freedom of speech?

A. In the U.S., the First Amendment prevents the federal government from arbitrarily and unnecessarily interfering with an individual’s speech.

Q. Where does freedom of speech come from?

A. Freedom of speech is guaranteed by the First Amendment to the Constitution of the United States:
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 to assemble, and to petition the Government for a redress of grievances.

Through the Due Process Clause of the Fourteenth Amendment, free speech protection is extended to prevent similar actions by state governments.

Is only actual speech protected by the First Amendment?

A. No. The Supreme Court has held that certain forms of non-verbal speech, called symbolic speech, can be covered by the First Amendment. To be considered symbolic speech, your non-verbal actions must have some meaning or message. For example, wearing a yellow ribbon in support of a solider would be considered symbolic speech. Another example occurred in 1969, in the case of Tinker v. Des Moines, when the Supreme Court held that actions of students wearing black armbands to protest the Vietnam War counted as speech under the First Amendment, and was therefore protected.

In 1989, in Texas v. Johnson, the Court said that burning an American flag is also constitutes symbolic speech and therefore is protected so long as it is done in order to convey a message.

Q. Does freedom of speech mean I can say anything I want?

A. No. There are various restrictions that have been placed upon this freedom in the United States. The following types of speech are examples of "unprotected speech" that can be restricted, either by a court or legislature:

Clear and Present Danger
Speech is not protected if it presents a clear and present danger. The most common example is that the First Amendment would not protect someone who falsely shouted “Fire!” into a crowded theater.

“Tendency” Speech
This is speech that has a “tendency” to lead to illegal action and thus is not protected.

Incitement Speech
Speech that is intended to incite or actually produce immediate lawlessness is also not protected.

Defamatory Speech
A statement that damages another person’s reputation is considered defamatory and unprotected. The Supreme Court has made certain allowances for statements that could be considered defamatory but are either made in reference to a public person or can be shown to be true.

Fighting Words
Similar to speech that is considered to have a "tendency" to incite illegal action, fighting words are unprotected. In Chaplinsky v. New Hampshire, 1942, fighting words were defined as those having "a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed."

Seditious Speech
Seditious speech is that which advocates violently overthrowing the government or resisting lawful authority. This type of speech is unprotected and can be restricted because it endangers national security.

Q. What are my free speech rights in regards to my business? Am I allowed to say anything I want in my advertising?

A. No. The Supreme Court has created special rules for "Commercial Speech" – that is speech that is uttered only for the economic interest of a party. Historically, the government was allowed to completely regulate commercial speech. In recent years, the Court has recognized commercial speech as being protected under the First Amendment; however, it is still viewed as having a lower level of protection than other types of speech.

Q. What are my free speech rights in a public school?

A. The Court has long held that public school students don't "leave their constitutional rights at the schoolhouse door." This means that a student’s constitutional rights are protected even at school. However, the Court has also recognized a need for school officials to ensure the safety and education of their students.

Consequently, as a student, your speech can be regulated and limited within the school-setting. You cannot threaten another student or encourage violence, or promote the illegal use of drugs or alcohol. A 2007 Supreme Court decision, Morse v. Frederick, reiterated this position when the Court stated: "The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers [of illegal drug use]." The Court has given school officials the ability to restrict student speech that they consider dangerous and harmful to other students.

Q. What happens if I say something that isn’t considered protected?

A. You can say whatever you please – however, if your speech is considered unprotected (for example if you create a "clear and present danger" by yelling "Fire!" in a theater), you are responsible for whatever results from your speech, either in regards to endangering others or punishment by lawful authority.

Another example – a student threatens another student during school hours. The student’s speech, both because it is inside the school setting and because it is likely considered "fighting words," is not protected. It is perfectly constitutional for this student to be punished by school officials and, likely, by local authorities. This student would not be able to claim that the First Amendment protects him from being punished for his threats.

Q. What are some of the important freedom of speech cases?

A. There are many important cases in the history of freedom of speech, both historic and recent:

Schenck v. United States, 249 U.S. 47 (1919)
This landmark case established the “clear and present danger” test. In this case, the defendants were convicted of espionage after trying to create insubordination within the U.S. armed forces and interfering with recruitment. The Court affirmed their convictions on the basis that during war time, such speech was dangerous and could not be permitted.

Tinker v. Des Moines School District, 393 U.S. 503 (1969)
The Supreme Court upheld the rights of high school students to wear black armbands to school as a way to express their opposition to the Vietnam War. The Court held that the school’s suspension of the students violated the First Amendment because the school had no evidence that the wearing of the armbands would detract from the work of the school or the other students’ rights.

Cohen v. California, 403 U.S. 15 (1971)
In overturning the conviction of a man for entering a courthouse while wearing a jacket with an expletive directed at the Vietnam War-era draft inscribed on the back, the Supreme Court held that such speech was protected. According to the Court, this speech presented no danger of violence and no compelling reason for suppression by the state. In addition, the Court held that such words could not be considered “fighting words” because they were not directed at any specific person.

Morse v. Frederick, 127 S. Ct. 2618 (2007)
In the case more commonly referred to as the "Bong Hits 4 Jesus" case, the Supreme Court placed a major restriction on the freedom of speech. This case challenged the ability of a high school principal to punish a student for unfurling a banner saying "Bong Hits 4 Jesus" at a school-sponsored and school-sanctioned event. Basing its decision on the duty of schools to safeguard students from speech that could be reasonably regarded as encouraging drug use, the Court ruled that the actions of the principal did not violate the First Amendment.