What is Protected Speech? Defining First Amendment Limits

Freedom of speech is an essential American value. That freedom is defined by the U.S. Constitution’s First Amendment, which safeguards many forms of expression known as “protected speech.” Protected speech may include symbolic speech (such as burning a flag) and expressive conduct (rallies and protests). But it also has exceptions.

Recently, speech rights have become a topic of increasing public debate, particularly as they pertain to public universities, national security, and new forms of speech. In a moment where speech can take the form of texts, online comments, and even TikToks, it’s important to get clear on what constitutes protected speech. When you know your rights, you know you’re able to raise your voice without fear of retribution.

We’ve created this guide to clarify the scope of protected speech, explore exceptions, and help you communicate with confidence.

Understanding the First Amendment

Our oldest addition to the Constitution, the First Amendment states 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.”

Okay, you may be wondering, but what does that really mean? Let’s break it down.

The Establishment Clause

The first clause of the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) is called the Establishment Clause. It prevents the government from establishing a single state-sanctioned religion and is the basis for the separation of church and state.

In simple terms, the establishment clause means that the federal government may not favor any particular religion; it also may not oppress the practice of any particular religion.

The clause has been employed in many ways over the years. For example, it was invoked in Engel v. Vitale (1962) to stop state-sanctioned prayer in public schools.

Freedom of Speech

The concept of freedom of speech comes from the language that states: “Congress shall make no law…abridging the freedom of speech.” But this is far from self-explanatory.

On a basic level, it means that the government may not take actions to curtail the public speech of private individuals. It does not mean that all limitations on speech are illegal.

Supreme Court rulings have dictated an array of exceptions to this clause, which we’ll explore in greater detail later on. Some exceptions include: hateful speech, libel, threats, and fighting words.

Freedom of Press and Petition

The last two clauses of the First Amendment prohibit Congress from 1) interfering with the dissemination of information through the channels of mass communication, and 2) from passing any law that would infringe on peaceful demonstrations.

There are limits to these clauses, too, particularly the freedom of the press. Defamatory and damaging speech may be limited, but the scope of what constitutes defamation has long been up for dispute.

Examples of Protected Speech

According to the First Amendment, “speech” is understood as almost any form of expression. These may include writing, demonstrating, wearing specific clothing, posting online, or even creating and viewing art. Nowhere in the Constitution is there a list of precisely which types of speech are protected. Rather, there are many examples from U.S. legal history that help us to understand the scope of protected speech.

Let’s explore a few key examples here.

1. Political Speech: Discussing politics — even in heightened or aggressive terms — is largely protected under the First Amendment. In 1969, the Supreme Court ruled that “political hyperbole” was legal, even if it might be taken as a threat in a different context. Threats are an exception to protected speech, so it is important to be able to distinguish between dramatic rhetoric and real danger. This category of speech, like many others, helps to protect the free exchange of ideas in public universities, in addition to other settings.
   
2. Symbolic Speech: The most famous example of symbolic speech is the burning of the American flag. This controversial action has been brought before legislature multiple times, but it is currently protected under the first amendment. The act of burning a flag is considered speech, because it expresses political content, even without explicit language.
   
3. Advertising: Commercial speech, which includes marketing and other advertising methods, is afforded more limited protections than other types listed here. Until 1942, when the Supreme Court ruled to extend some protections, it was not considered protected speech at all. Now, commercial speech is still subject to heavy regulation. Companies who do not adhere to restrictions may find themselves embroiled in consumer fraud or product liability suits for false advertising.
   
4. Works of art, slogans, and clothing: What you wear, read, or watch says a lot about you. While public schools may have some leeway to restrict these expressions, institution generally cannot limit what private individuals wear or what art they consume. That said, there are some opportunities for censorship. We’ll explore these under exceptions to protected speech, below.

Examples of Unprotected Speech

When speech is not protected under the First Amendment, it may be subject to regulation and legal action. In the United States, there are several types of speech that fall outside the scope of the Constitution, some of which are outright prohibited. Still, as with any freedom of speech issue, these categories are constantly being reinterpreted.
Some of the most common exceptions to protected speech include:

1. Hate Speech, Fighting Words, and Threats: “Fighting words” are speeches that may incite a violent reaction and are used to inflame others toward illegal action. This type of speech is not protected and is determined based on whether the average citizen would view the language as likely to provoke violence. Similarly, “true” or “credible threats” against other individuals are not protected.
   
2. Certain forms of Obscenity: A high threshold must be met in order to prove unprotected obscenity. The “Roth test,” which came out of a 1957 Supreme Court case of the same name, set standards for determining what constitutes unprotected obscene materials.
   
3. Libel and Slander: Outright lies that may damage another person or their business are not generally protected under the First Amendment. Individuals who defame others may be subject to civil penalties. As online defamation proliferates, it’s important that individuals understand the extent to which this speech is or is not protected.
   
4. Intellectual Property Violations: Intellectual property, including copyrights and trademarks, is protected by significant legislation. Violations of intellectual property rights are therefore not protected, even if arguments are made regarding the freedom of speech.

What to Do if Your Freedom of Speech Has Been Violated

It’s important to note that freedom of speech applies to attempts by government actors to curtail your expression. Private individuals cannot infringe upon each other’s freedom of speech, though they may encounter other issues requiring litigation.

With this in mind, if you feel that your freedom of expression has been infringed upon, you’ll want to reach out to a civil rights attorney to discuss your legal options. Remember: First Amendment speech protections are complex, but they are also extensive. Don’t stay silent. Your Constitutional rights entitle you to protected speech.

If your freedom of speech has been violated, contact McCune Law Group today to discuss your legal options. Even if we cannot assist you with this particular issue, we can recommend experts who can.