Is your speech protected by the First Amendment?


by Lata Nott, Executive Director, First Amendment Center

Can your bosses fire you for stating opinions they don’t agree with? Can your school keep you from starting a controversial club? Can a website or newspaper refuse to publish your opinion?

Freedom of speech is a very well-known but often misunderstood concept. Americans see free speech as an important right–-our last survey showed that 86% of Americans think that free speech is more important than protection from offense. But while it’s common for us to assert our right to express our opinions, it’s easy to forget that not all of our speech is legally protected by the First Amendment.

So when does the First Amendment protect your speech from censorship or punishment? Ask yourself four questions.

1.

First of all, is it speech?

Freedom of speech doesn’t just apply to the words that come out of your mouth. It applies to a number of different forms of expression, including:

At least one federal appeals court has found that liking something on Facebook qualifies as speech. Some types of computer code may be considered speech, but the limits of that is still an open question.

2.

If it is speech—is the government censoring or punishing it?

The First Amendment only protects your speech from government censorship. It applies to federal, state, and local government actors. This is a broad category that includes not only lawmakers and elected officials, but also public schools and universities, courts, and police officers.  It does not include private citizens, businesses, and organizations. This means that:

  • A private school can suspend students for criticizing a school policy;
  • A private business can fire an employee for expressing political views on the job; and
  • A private media company can refuse to publish or broadcast opinions it disagrees with.

3.

If the government is censoring your speech–does your speech fall into an unprotected category?

There are several categories of speech that are not protected by the First Amendment at all.

Click on a category to learn more about it.

True threats are not protected by the First Amendment, but the legal definition of what constitutes a true threat is somewhat unclear.

The Supreme Court has said that a statement can be a true threat even if the speaker had no intent of actually carrying out the threat. What matters is that the speaker intended to place his victim in fear of bodily harm or death.

So is a threat a “true threat” if the speaker subjectively intended to intimidate or threaten the recipient? Or is it a true threat if the recipient of the threat reasonably believed it was a threat? Different courts have different ways of approaching this assessment so the answer to this question might depend on where you are.

Blackmail is not protected by the First Amendment.

Defamation means false statements that harm another person’s reputation. Slander and libel are different types of defamation: libel generally refers to something you wrote, while slander refers to something you said.

If you say or publish something false that harms the reputation of a public figure (such as a politician, celebrity, or business leader), in order to succeed in a lawsuit against you, they will have to prove that you acted with actual malice (meaning that you knew the statement was false, or you acted with a reckless disregard for the truth) .

In contrast, if you say or publish something false that harms the reputation of a private figure, they will have to prove that you acted negligently (meaning that you didn’t take reasonable care to find out the truth, i.e. you didn’t do enough research or fact-checking). This is much easier to prove than actual malice.

To learn more about libel, see our primer on the subject.

While obscenity is not protected by the First Amendment, depictions of nudity, and many depictions of sex, do not meet the legal definition of obscenity. The actual legal definition of obscenity follows these guidelines set up by the Supreme Court:

  • Would the average person, applying contemporary community standards, find that the work, taken as a whole, appeals to the “prurient interest” (meaning a morbid, degrading and unhealthy interest in sex)?
  • Does the work depict or describe, in a clearly offensive way, an act of sexual conduct??
  • Does the work, taken as whole, lack any serious literary, artistic, political, or scientific value?

Child pornography is not protected by the First Amendment.

The First Amendment offers fairly broad protection to offensive, repugnant and hateful speech. Regulations against hate speech imposed by a government actor (like a public university) are often found unconstitutional when they are challenged in court.

There are some exceptions to the First Amendment’s protection of hateful speech. If the hate speech is seriously threatening or would lead to imminent lawless disorder, it will not be protected. The First Amendment also does not protect “fighting words.” These are words “that by their very utterance inflict injury or tend to incite an immediate breach of the peace.” This is a very narrow definition. Words that cause offense or emotional pain are not fighting words. They have to do more than that in order to fall into this unprotected category of speech.

Since 1942, Court hasn’t found the “fighting words” doctrine applicable to any of the hate speech cases that have come before it.

Convincing someone else to commit a crime is not protected by the First Amendment.

The First Amendment does not protect speech that leads to imminent lawless action.

  • This kind of speech has to be directed towards a specific person or group;
  • It has to be a direct call to commit immediate, lawless action; and
  • There must be an expectation that the speech will in fact lead to lawless action.

A more general statement (i.e., “people should rise up one of these days”) would not fall into this category of speech.

Lying under oath (such as when you are serving as a witness in a trial) is not protected by the First Amendment.

Copyright law creates property rights for the creators of certain works. If you copy another person’s writing, speech, art, music, or choreography without permission, that person can sue you for “trespassing” on their property. (And then the court, a government actor, can order you to stop your copyright infringement and impose financial penalties on you.)

Copyright law limits free expression in order to give people an incentive to create more expressions. If you could freely copy someone else’s work without paying for it, there would be no incentive for anyone to create new material. Why take the time to create a product if you will receive no reward? However, overly rigid copyright laws would reduce the public’s access to information. Copyright law attempts to resolve this tension by distinguishing between expression and ideas.

Copyright law does not protect the ideas, facts, methods of operation or scientific principles contained in an author’s expression. This information is considered public. However, it does protect the author’s particular way of expressing ideas and facts.

Additionally, copyright law has an exception for “fair use” of someone else’s expression. Courts weigh four factors when they’re determining whether your copying of someone else’s work to create your own work was “fair use”:

  1. They look at the purpose of the work you created. If the new work was created to make a profit, a court would be less likely to find it “fair use” than if it was created for non-profit educational purposes. But there are exceptions to this: parodies are a good example. Many parodies have been accorded a fair-use privilege even though they were created for commercial profit.
  2. They consider the “nature of the copyrighted work.” Generally, works of fiction tend to receive more protection than works of nonfiction.
  3. They ask how much your new work takes from the copyrighted material. Usually the more material taken, the less likelihood that the copying will be considered “fair use.”
  4. Finally, the courts will ask whether your new work has harmed the commercial value of the copyrighted work.

4.

If your speech does not fall into one of the unprotected categories–do you fall into a special category?

The government generally has greater power to dictate speech policies when it acts in certain capacities, such as educator, employer or jailer.

Click on a category to learn more about it.

Public school students do not lose their constitutional rights when they walk through the schoolhouse doors. But two legal principles limit their rights. First, minors do not possess the same level of constitutional rights as adults. Second, a school’s interest in educating students in a safe environment can sometimes outweigh freedom of speech.

A school has the right to discipline or censor a student’s speech at school or at a school-sponsored activity if that speech substantially disrupts the school environment or invades the rights of others.

Whether a school can punish a student for speech made off-campus (such as something posted to Facebook) is a complicated and unsettled legal question. The Second, Seventh, and Eighth Circuits have found that schools can punish off-campus speech if it was “reasonably foreseeable” that the speech in question would reach the school community. Similarly, the Fourth Circuit has found that a school can sanction your off-campus speech if there is a “sufficient nexus” between the speech and the school (for example, when a student created a website ridiculing other students, the Fourth Circuit concluded that she knew that a negative dialogue would take place that would disrupt the school). Other Circuits haven’t established clear guidelines for when schools can discipline off-campus speech.

Private employers have the right to fire or discipline employees for their speech (remember, the First amendment only applies to government censorship). But when the government is your employer, things get more complicated. Sometimes the government needs to be able to discipline or limit the speech of its employees in order to keep its agencies and offices running efficiently. At the same time, government employees shouldn’t be deprived of the free speech rights that other citizens enjoy. In an attempt to balance these two interests, the Supreme Court has developed a full body of law on government employee speech:

  1. If a government employee’s speech arose out of their official duties, that speech will not be protected by the First Amendment.
  2. If the government employee’s speech did not arise out of their official duties, the First Amendment might protect their speech if:
    • The speech was on a matter of public concern;
    • The government employee’s interest in commenting on this matter of public concern outweighs the employer’s interest in regulating the speech; and
    • The government employee’s speech was a substantial factor in whatever penalty they received (termination, suspension, etc.).

Prisoners do not have the same level of First Amendment rights as other citizens. The Supreme Court established that when a prison regulation infringes on an inmate’s First Amendment rights, it’s constitutional as long as the regulation is reasonably related to a legitimate and neutral interest of the prison.

In deciding this, a court will consider:

  • Whether the prison regulation is applied in a neutral manner, and doesn’t discriminate against prisoners based on the content of their expression;
  • Whether the regulation leaves open alternative ways for the prisoner to express him or herself;
  • Whether accommodating the prisoner’s speech rights would negatively impact other inmates, guards, and the prison’s resources; and
  • Whether there is an alternative to the regulation that would not restrict the prisoner’s rights as much. (The existence of easy alternatives can show that the regulation was an “exaggerated response” to prison concerns.

For more information about prisoners’ First Amendment rights, the the Jailhouse Lawyer’s Handbook is an invaluable resource.

Note that this primer should not be taken as legal advice, but as an effort to simplify what can be a very complicated area of the law. If you wish to pursue a First Amendment legal action, you should contact an attorney or legal services group in your area.

To learn more about your First Amendment rights, check out our First Amendment FAQs.