Free Speech

Guide to Free Speech Laws in the United States


Freedom of speech and expression is protected mostly by the 1st amendment in the U.S. Constitution. But the 1st amendment doesn’t protect ALL speech or expression and it only prevents the government from restricting speech.

In general, the Constitution restricts what government can and can’t do, and does not directly apply to individuals or companies. Of course, restricting the government from censoring speech indirectly gives individuals certain free speech rights. But those outside the government, such as private employers, are allowed to censor or restrict speech in certain ways.

1. What type of speech does the 1st amendment protect? 

The government generally may NOT restrict any of the following (with some exceptions, discussed below):

  • political speech, including on school campuses, or using offensive language
  • burning or refusing to salute the American flag
  • refusing to speak
  • using offensive language towards police
  • speaking in a “public forum”
  • alternative holiday displays
  • political-related spending

Can the government restrict the right to protest or make political speech?

Generally, you have the right to protest or make political speech, except that the government may require you to get a permit to assemble a group of people, or restrict noise levels, or prevent you from trespassing on private property, and impose other similar restrictions (called “time, place, and manner” restrictions, or TPM). Any such regulations or restrictions must NOT be based on the content of the speech (except when the content violates any of the rules below).

What about political speech on campus?

You have the right to express political messages on a school campus1see Tinker v. Des Moines, 393 U.S. 503 (1969)

What about using offensive language for political purposes?

You have the right to use offensive language to convey a political message2see Cohen v. California, 403 U.S. 15 (1971)

Is it illegal to burn the American flag?

No. The government cannot prohibit burning or otherwise damaging or destroying the American flag3See Texas v Johnson (1989)

Is it illegal to refuse to salute or “honor” the American flag?

No. Generally you have the right to decide not to speak or express yourself; for example, you have the right to refuse to salute the flag.4see West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943) However, in certain circumstances the government may compel you to speak (see compelled speech below)

Is it illegal to use offensive language or gestures towards the police?

You generally have the right to use offensive language or gestures towards police, such as flipping off a police officer.5Cruise-Gulyas vs. Minard (2019) However, we do not recommend this. See our Guide to Police Conduct for more.

Do I have the right to speak in a public forum?

You have the right to speak in a “public forum” or “public square” which is a physical or digital space that is deemed or understood to be a place for the public to discuss issues of importance.

Can the government block me from social media?

Social media accounts in which the government exerts some control or are used for any official business, such as Trump’s twitter account,6Knight First Amendment Institute v Trump are considered a “public forum.” In these situations, the government cannot block people from viewing, commenting, or responding to posts if this is based on the user’s viewpoint. So, no, Trump can’t block people he doesn’t like from his Twitter account.7Knight First Amendment Institute v Trump

Is it legal to display alternative religious holiday symbols?

You have the right to place alternative religious or non religious symbols in a holiday display at a government building. This is a subset of the “public forum” issue. It explains why the government must allow displays by groups like atheists and Satanists.

However, this does not extend to private property that is not owned or controlled by the government.

Can a person or organization spend or contribute any amount towards a political campaign?

In general, spending on political campaigns is protected as an exercise of free speech.8Buckley v Valeo (1976) This also applies to corporations and other organizations, as under the now famous (or infamous) case of Citizens United, they are considered to have their own free speech rights.9Citizens United v FEC (2010)

However, it is OK for the government to limit the amount any individual or organization may contribute to a particular political candidate. Federal, state, and local laws generally limit the amount you can donate to a candidate. Currently the federal contribution limit is $2,800. Keep in mind that this does not apply to “independent” spending. So, a wealthy person could spend $1 million to run ads on their own in support of a particular candidate (so long as they do not coordinate with the campaign).

2. What types of speech are NOT protected by the 1st amendment?

The government may restrict your right to:

  • Yell “fire” in a crowded theater, or other speech that incites imminent lawless action.10Schenck v. U.S.
  • Make “true” threats of violence against another person, where the speaker actually intends to carry out the threat.11See Watts v. United States, Virginia v. Black
  • Make “obscene” expression; this is a very high standard, and very few things are obscene enough to be prohibited.12see Miller case
  • Create, view, or possess child pornography13see See New York v. Ferber
  • As a student, make an obscene speech at a school-sponsored event.14see Bethel School District #43 v. Fraser, 478 U.S. 675 (1986)
  • Burn draft cards as an anti-war protest.15United States v. O’Brien, 391 U.S. 367 (1968)
  • Publish false advertising of a product or service, and in general the government can regulate “commercial” or business-related speech more strictly than non-commercial speech.
  • Publish or say false things that harm a person’s reputation. This is called “defamation.”
  • Publish or say things that violate a person’s privacy rights.
  • Publish work that is protected by copyright.
  • Leak” or disclose government information which you know because of your security clearance16Espionage Act; 18 US Code Sec 798

3. Compelled Speech: When can the government force me to speak about something?

If the government issues a “subpoena” for you to testify about something, you may be legally required to do so. However, you may be able to “plead the 5th” (5th amendment right to remain silent if you believe answering may implicate you in a crime). “Pleading the 5th” can protect you against having to provide such information even outside a court.17Miranda v Arizona

Journalists: You may be entitled to “journalist’s privilege” so that you wouldn’t need to reveal your sources to the government. This is generally based on whether your state has a “shield law.”

4. Free Speech and Employers

Can employers restrict my free speech?

In some ways, yes. As discussed above, private employers are generally NOT subject to the 1st amendment (only the government is). But some state laws do protect employees from being fired for certain political activity. See our Guide to the Law for Employees for more.

5. Free Speech and the Internet

Can Twitter or Facebook restrict free speech?

Yes, they pretty much have free reign as to the content on their platforms. As discussed above, they are not subject to the 1st amendment, as the Constitution generally only applies to the government, not private companies or individuals. However, as discussed above, public officials using Twitter or Facebook (or any other social media platform) may not restrict others from seeing or commenting on their account.

See more about User Generated Content (UGC) at our Guide to the Law about the Internet & Social Media.

Resources

If your free speech is being violated by the government, here are some options for you to get legal help.

Related Pages

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