The First Amendment to the United States Constitution clearly states:
“Congress shall make no law…abridging freedom of speech.”
But what does this actually mean? Freedom of speech, a cornerstone of American liberty, is not simply a phrase. It embodies a complex set of rights and limitations, shaped by legal interpretation and historical context. Understanding what freedom of speech means in practice requires examining both what it protects and where its boundaries lie.
Freedom of speech means, fundamentally, the right to express oneself without government censorship or restriction. This encompasses various forms of expression, not just spoken words. The Supreme Court has consistently affirmed that this right extends to:
- The Right to Silence: What does it mean to have freedom of speech? It means you also have the freedom not to speak. As affirmed in West Virginia Board of Education v. Barnette, students cannot be compelled to salute the flag, highlighting that freedom of speech inherently includes the right to refrain from speaking or expressing certain sentiments.
- Student Expression: The iconic Tinker v. Des Moines case clarified that students retain their constitutional rights, including freedom of speech, even within the school environment. Wearing black armbands to protest war, the court stated, is a form of protected speech. What this means is that schools are not zones devoid of constitutional protections.
- Expression of Unpopular Ideas: Freedom of speech’s protection extends even to offensive or controversial expressions. Cohen v. California demonstrated that using offensive words to convey political messages is, under certain circumstances, protected. This means that the threshold for restricting speech is high, even when the content is disagreeable to many.
- Political Contributions: Contributing money to political campaigns, as established in Buckley v. Valeo, is also recognized as a form of protected speech. What does this mean? It means that financial contributions in the political sphere are considered a way of expressing political support and engagement.
- Commercial Speech: Advertising products and services, within certain regulatory frameworks, falls under the umbrella of free speech, as confirmed in Virginia Board of Pharmacy v. Virginia Consumer Council and Bates v. State Bar of Arizona. This means that businesses also have a right to communicate with consumers, although this right is not absolute and can be regulated.
- Symbolic Speech: Actions that express a political message, known as symbolic speech, are also protected. The flag burning cases, Texas v. Johnson and United States v. Eichman, are prime examples. Burning a flag, while offensive to some, is recognized as a powerful form of political protest and is constitutionally protected, illustrating what freedom of speech can mean in action.
However, understanding what freedom of speech means also necessitates acknowledging its limitations. The right is not absolute and does not extend to all forms of expression in every context. The courts have also defined categories of speech that receive less or no protection under the First Amendment:
- Incitement to Violence: Speech that is directed at inciting or producing imminent lawless action and is likely to incite or produce such action is not protected (Brandenburg v. Ohio). This means freedom of speech does not extend to speech that poses an immediate threat to public safety and order.
- Obscenity: Distributing obscene materials is not protected by freedom of speech (Roth v. United States). The legal definition of obscenity is narrow, but it means that speech deemed to be utterly without redeeming social importance and appealing to prurient interest does not receive constitutional protection.
- Illegal Symbolic Acts: While symbolic speech is protected, not all actions intended to convey a message are. United States v. O’Brien established that burning draft cards, despite being a form of protest, was not protected speech because it violated a valid government regulation unrelated to speech. This means the government can regulate conduct even if it has a symbolic element, if the regulation serves a substantial government interest.
- School Authority over Student Publications: Hazelwood School District v. Kuhlmeier clarified that schools have the authority to exercise editorial control over student newspapers published as part of the curriculum. In the school context, what freedom of speech means for students in school-sponsored publications is somewhat limited by the educational mission of the school.
- Obscene Speech at School Events: Bethel School District #43 v. Fraser demonstrated that schools can prohibit lewd or obscene speech at school-sponsored events. This further refines what freedom of speech means for students, particularly in the context of school-organized activities where maintaining a certain decorum is deemed appropriate.
- Advocacy of Illegal Drug Use at School Events: Morse v. Frederick upheld a school’s right to restrict student speech advocating illegal drug use at school events. This means that schools can take action against speech that undermines their educational mission, especially concerning student safety and well-being.
In conclusion, “freedom of speech” is a powerful and essential right, but its meaning is nuanced and context-dependent. It means both the liberty to express a wide range of ideas and the responsibility to understand its limitations. The examples provided by Supreme Court cases illustrate the ongoing effort to define and protect this fundamental freedom in a dynamic society.
Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation.
