Constitution 101: Freedom of Speech (Part 1)

The First Amendment guarantees freedom of speech, but what are its limits? Do we have a constitutional right to commit slander or to burn the flag? Find out in part 5 of Legal Lad’s series about the U.S. Constitution.

Adam Freedman
October 19, 2012

Constitution 101: Freedom of Speech (Part 1)

by Adam Freedman

Today’s Topic: Constitution 101 – Freedom of Speech

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Constitution 101

This is the fifth installment of my new series on the U.S. Constitution and the Bill of Rights. For more on the Constitution, you can check out my new book, The Naked Constitution: What the Founders Said, and Why it Still Matters.


The First Amendment

This is the first of two episodes about the most famous part of the First Amendment – freedom of speech. In this episode, I’ll give an overview of free speech, while in part 2, I’ll focus on the controversial issue of campaign finance laws. The First Amendment states: “Congress shall make no law . . . abridging the freedom of speech, or of the press.”  Of course, there’s more to the First Amendment than free speech; as I explained in the previous episode of this series, the amendment also protects religious liberty

The framers of the First Amendment did not claim to be creating a new right, nor did they define their terms. The amendment assumes the existence of “freedom of speech” and commands Congress to make “no law” abridging that freedom. To abridge something means to diminish it in any way. On its face, therefore, the First Amendment appears to create an absolute prohibition against government interference with your right to say or publish anything you like. 

“Speech” Includes Conduct

In fact, over the years, the First Amendment has moved beyond verbal speech, and has become a guarantee of “free expression.” Today, many examples of non-verbal communication have been recognized under the First Amendment, including erotic dancing, wearing expressive clothing, and even the one-fingered salute known as “flipping the bird.” But there are limits – courts have rejected arguments that smoking cigarettes, riding motorcycles, and wearing baggy trousers are protected by the First Amendment. And yes, all of those arguments were seriously made in federal court.

Balancing Tests

The seemingly absolute language of the First Amendment has not turned out to be so absolute in practice. First of all, at the time the amendment was ratified, it was understood that certain categories of expression simply didn’t qualify as “free speech.” For example, there was no freedom to commit slander or libel against other people, and courts have not extended free speech to those forms of defamation. 

But even beyond those historical limitations, courts have created their own exceptions to the First Amendment.  Justice Oliver Wendell Holmes famously said that the First Amendment does not protect the right to "falsely shout ‘fire’ in a crowded theater" (of course, if you are honestly shouting “fire,” then Justice Holmes thought it was okay to let people know!). 

To deal with situations in which the government does regulate speech, the Supreme Court has developed certain distinctions and balancing tests. The threshold question in speech regulation is whether the law in question is “content neutral,” that is, whether it targets a particular type of speech or point of view. Typically, such laws regulate the “time, place, or manner” of speech – but not the content. Think of zoning laws, or the requirement to get a permit to hold a parade. Such laws will be upheld so long as they further a “significant” governmental interest. 

Freedom for Unpopular Speech

However, where the government attempts to restrict speech based on its content, the courts apply so-called “strict scrutiny,” meaning that the law must further a “compelling” government interest and that the law must be “narrowly tailored” to achieve that end. In practice, that’s a very tough standard -- it is difficult for government bodies to justify content-based speech restrictions. As a result, federal courts, and particularly the Supreme Court, have had to defend expression that many people find offensive. The Supreme Court has held, for example, that both flag-burning and cross-burning are constitutionally protected speech (although the court carved out an exception for cross-burning specifically intended to convey a threat of bodily harm). More recently, the Court held that protestors had the right to heckle the funeral of a fallen U.S. Marine. 

One exception to this bias against content-based regulation: harassment law. Laws and regulations directed at workplace harassment do have the effect of restricting speech and expression based on content. The issue has yet to reach the Supreme Court; however, in lower courts harassment laws have typically been upheld in the face of First Amendment challenges.

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