Speech Protected Under the First Amendment

The First Amendment protects the government from censoring broad categories of speech. But what is speech?

The Supreme Court has consistently held the First Amendment to protect much more than “mere” words. As the Court noted in Cohen v. California (1971), the amendment protects not just speech but “communication,” even when it’s not in words. As a result, when you read “speech” in the First Amendment, you should 

Our courts have held that the First Amendment protects a dizzying array of communicative activities. Speech has been broadly defined as expression including, but not limited to, what you wear, read, say, paint, perform, believe, protest, or even silently resist. “Speech activities” can include leafleting, picketing, symbolic acts, wearing armbands, demonstrations, speeches, forums, concerts, motion pictures, stage performances, remaining silent, and so on. 

Moreover, the subject of your “speech” is not confined to the realm of politics. The First Amendment protects purely emotional expression, religious expression, vulgarity, parody, and satire. Your speech need not be articulate or even rational, much less polite, to enjoy constitutional protection.

Is ‘hate speech’ protected by the First Amendment?

Contrary to popular misconception, there is no First Amendment exception allowing the government to punish so-called hate speech.

Hateful speech may be punishable if it falls into another category of unprotected speech–and the kind of “hate speech” people tend to have the greatest worries about frequently does fall into those categories. Hateful speech that incites imminent lawless action, is a true threat of serious bodily harm, or causes an immediate breach of the peace can be punished because it does those things, regardless of the reason, but not because it is hateful. 

The Supreme Court has held the First Amendment allows Americans to protest a soldier’s funeral with signs saying “God Hates Fags” and “Thank God for Dead Soldiers” (Snyder v. Phelps), burn the American flag in protest (Texas v. Johnson and United States v. Eichman), give a racially charged speech to a restless crowd (Terminiello v. Chicago). Even cross-burnings in the manner of the Ku Klux Klan cannot be subjected to blanket bans (R.A.V. v. City of St. Paul, Virginia v. Black). 

The most prominent case about flag-burning, Texas v. Johnson (1989), states the general rule the government must follow: “government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable.” Federal courts have consistently followed this holding when applying the First Amendment.

While this means tolerating a great deal of speech that is widely considered offensive, a free society must give much breathing space to hateful speech in order to avoid thought control and the censorship of unpopular views by the government. Instead of stifling free speech, we, as free citizens, have the power to most effectively answer hateful speech through protest, mockery, debate, questioning, silence, or by simply walking away.

Learn more about the legality of hate speech

Harassment

While actual harassment is not protected by the First Amendment, simply labeling any kind of offensive speech as “harassment” does not make it punishable. There are many occasions on which courts have struck down anti-harassment regulations and laws because they were written in a way that would allow the authorities to punish a substantial amount of protected speech. 

To avoid this, courts have carefully crafted definitions of harassment so as to avoid conflicting with the First Amendment. In the educational context for example, the Supreme Court held in Davis v. Monroe County Board of Education (1999) that student-on-student harassment consists only of unwelcome, discriminatory conduct (which may include expression) that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

By definition, this includes only extreme and usually repetitive behavior — behavior so serious that it would prevent a reasonable person from receiving his or her education.

The government may also prohibit harassment, properly defined, in the workplace. This includes quid pro quo harassment — where a supervisor conditions continued employment or job benefits on sexual favors — and hostile work environment harassment based on race, sex, or another protected characteristic. The latter arises when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider hostile, abusive, or intimidating.

Charged political rhetoric

Political speech is “at the core of what the First Amendment is designed to protect,” and our system grants considerable deference to even threatening language posed in a political context, as the “language of the political arena . . . is often vituperative, abusive, and inexact,” according to the Supreme Court in Virginia v. Black (2003) and Watts v. United States (1969), respectively.

This is not a new development. Political discourse has long been steeped in themes of violence. Famously, Thomas Jefferson predicted that revolution and violence would be necessary to preserve liberty, writing: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” And, of course, politics sometimes involves explicit calls for violence in the form of military action, from President Franklin D. Roosevelt’s “day that will live in infamy” speech requesting a declaration of war against Japan in 1941, to President George W. Bush’s vow on September 11, 2001: “Make no mistake: The United States will hunt down and punish those responsible for these cowardly acts.” The millions of Americans echoing those calls in the wake of the attack on Pearl Harbor and the terrorist attacks of 9/11 could not be punished for doing so.

Today, our national political conversation continues to be filled with impassioned speech on polarizing, high-stakes issues. This rhetoric is protected even if it is tinged with violent themes. While the First Amendment does not protect rhetoric that amounts to “true threats” or “incitement,” these are and must be narrow, precise exceptions. Expansive interpretations of these exceptions would chill the right to political expression, which embraces “the right to criticize public men and measures — and that means not only informed and responsible criticism, but the freedom to speak foolishly and without moderation,” according to the Supreme Court in Baumgartner v. United States (1944).

Learn more about why (most) calls for genocide are protected speech

Why even (most) lies are protected speech

Few would consider lies beneficial to public discourse or human relationships. Even so, there are good reasons why our Constitution protects most forms of dishonesty, deception, and artful deviations from the truth.

It starts with this question: What exactly is a lie, anyway?

Most of us can agree that lies are the opposite of truth, but opinions vary from that point forward. Must lies require a conscious attempt to deceive? If the speaker honestly believes the falsehood is true, or carelessly repeats whatever they heard, is that lying? Can statements once thought to be true retroactively become lies once they’re discovered to be false?

Things get weirder when you start factoring in things like fiction, satire, or parody. Are those actually, or even technically, “lies”? What if something is mostly true, or mostly false? At what point does a statement cross the threshold into being an official lie?

Unprotected Speech Synopsis

Issue Pages

FIRE's guide to speech not protected by the First Amendment for educators and students outlining incitement, threats, defamation, and hate speech

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And all of that assumes you can easily tell if someone is making a statement of fact versus one of opinion. If a person says “all politicians are crooks,” are they lying if you can find one who isn’t a criminal, making the statement literally untrue? Or was their statement actually one of opinion?

Hopefully these questions illustrate the difficulty of knowing how and where to draw these lines. Now imagine trying to legislate all this. How can you legally tell the difference between lies and honest mistakes? How much does intention play into your definition, and how can you reasonably gauge it? Perhaps most importantly: How can you ensure that whatever laws you create to stamp out lies don’t get abused, or stamp out important truths along with them? 

This last question has been central to why discussions about regulating lies with laws have been so difficult, and why they’ve almost always ended by erring on the side of letting false speech stay free.

The short answer to why lies are constitutionally protected is that, outside of properly defined defamation and fraud, as well as the few narrow and formally recognized categories of unprotected speech, the First Amendment is neutral regarding the content of the speech it defends.

This principle was expressed beautifully by Justice Thurgood Marshall in the 1972 Supreme Court case Police Department of Chicago v. Mosley, which questioned the constitutionality of a city ordinance banning non-union picketing outside of a school building. In the majority opinion, Marshall wrote, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

Learn more about why (most) lies are protected speech