The First Amendment was written in 1789 and ratified (officially approved) on December 15, 1791, along with the rest of the Bill of Rights, the first ten amendments to the United States Constitution. When the Constitution was written in 1787, it did not initially include a list of individual rights.
The First Amendment protects your right to think, speak, believe, and gather freely—the main freedoms that make self-government and open debate possible. There have been many lower court and Supreme Court cases that have explored the freedoms under the First Amendment, so it has been reviewed and refined many times since it was created.
What does ‘free speech’ mean?
Freedom of speech allows people to express their thoughts and opinions freely. It also protects actions. This means that what you say, what you wear, what you do, what you write, and other forms of creative expression are protected. Because the freedom of speech clause protects expression, it is also called the freedom of expression, and it acts like a shield. You cannot be punished by the state police or the federal government because they do not like what you have said.
Free speech is an important part of a democratic society, or one that encourages free and fair elections. People must be able to have open discussions and debate without having a fear of punishment by the government.
Courts give different levels of protection to different types of speech. When they evaluate the regulations on free speech, they consider:
1) What is being said?
2) When, where, or how it is being said?
There are four main types of speech that courts address:
Political Speech
The Founding Fathers of the United States emphasized the right of free speech, and the Supreme Court has upheld political speech as the most important part of free speech. Therefore, if regulations are placed on political speech, they have to be tailored for specific reasons. For example, regulations cannot target political signs based on a candidate’s political party or their views. But limiting sign placements can be allowed by a city or district if they are using the regulation to declutter highways or roadways based on their danger to passersby.
Symbolic Speech
Courts also place high importance on symbolic speech. For example, it is a protected expression for a person to burn the American flag or refuse to salute it. A person is also protected from punishment for wearing a black armband to protest a war.
Commercial Speech
Commercial speech is less protected than other types of speech. Courts have found that the government can regulate false or misleading advertising for illegal products. They can also put other restrictions in place if they serve the government’s interest.
Speech in K-12 Schools
Another area where speech can be more regulated is in schools. Although students may be able to wear what they want outside of schools, courts have found that schools can regulate student speech if they believe it will cause a disruption to the educational environment. For example, courts have found that schools are allowed to suspend a student wearing a T-shirt with a “vulgar” or inappropriate message, but not for wearing a political armband.
Unprotected Speech
But the right to freedom of speech and expression is not absolute. You cannot say or do whatever you want, whenever you want.
The First Amendment protects against government censorship and restrictions on speech; however, private companies can set their own speech policies and may limit speech on their platforms. Employers can regulate employee speech in the workplace, especially if it disrupts operations. Social media platforms can have their own regulations. Platforms like Facebook, TikTok, and Twitter can determine what content they think is acceptable based on their community guidelines, and not based on government orders.
The First Amendment limitations on free speech exist largely to prevent people from being harmed. When your speech or acts fall into one of the unprotected categories, your speech or expressions are not protected. Freedom of speech is not a freedom from consequence.
Unprotected Speech: Government Regulation
The categories of unprotected speech that fall outside of what the government considers freedom of expression under the First Amendment are defined further below. If your speech or expression falls into one of these categories, you are breaking the law. The courts make sure your speech and expressions do not break the law or encourage people to break the law, threaten or hurt people, and they also protect children.
Obscenity: The Supreme Court defines something as obscene if it is very rude and does not have artistic, political, or scientific value.
Defamation: Defamation means writing or saying something untrue about a public person and doing it to harm them.
Fraud: Fraud is when you try to mislead someone by saying something is true when you know it is not and someone is harmed by believing it.
Incitement: Incitement, sometimes called incitement to violence, happens when someone uses words to encourage others to act with force or violence right away.
Fighting words: Similar to incitement, these are words that would make a person upset or make them want to have a physical reaction to something.
True threats: True threats are words or actions that would cause someone to feel like they are in danger. A fair person who is not involved would also agree that it was threatening violence.
Conclusion
The free speech clause of the First Amendment allows you the freedom to express yourself in many ways. You can protest if you do not agree with the government, but you must do so lawfully. The First Amendment exists to ensure we continue to live in a place where we can continue to disagree and express ourselves, and remain a democratic society.
