Free Speech: Frequently Asked Questions
Disclaimer: This guide is designed for informational purposes only. It is not legal advice and is not intended to create an attorney-client relationship. The Lawyers’ Committee for Civil Rights does not warrant any information contained in this guide, nor does the Committee suggest that the information in this guide should be used as a basis to pursue legal action. This guide is not exhaustive. Situations or inquiries may arise that are not answered below. In those circumstances, please call 844-9-NO-HATE.
1. What do we mean by “Free Speech?”
Free speech is the right to express beliefs and ideas.
2. The First Amendment limits regulations on free speech. Does it apply to everyone who limits or controls Speech? (Government vs Private Actors)
No, the First Amendment only restricts what the government and government entities can do with regards to regulating speech and assembly. A “government entity” can be anything from the United States Congress or a state legislature to a public university or municipal parking authority.
3. Can private actors restrict speech and how?
Yes, private actors can restrict speech because the First Amendment only limits what government and government entities can do. The First Amendment does not prohibit private actors from limiting speech through otherwise legal means. In many contexts, such as employment and contractual agreements an individual’s speech can be restricted in a manner that does not raise First Amendment concerns. For example, an employer might limit what you can say in letters to an editor or in comments on social media. While the employer cannot fine or jail you, the employer can fire you provided the speech isn’t otherwise protected. (For example, private companies cannot generally adopt policies that discourage workers from exercising their right to communicate with each other to improve wages, benefits, or working conditions.)
Additionally, a private person can sometimes be sued for defamation, harassment, invasion of privacy, intentional infliction of emotional distress, or other civil torts, if they engage in such unlawful activities in conjunction with their speech.[i]
[i] Many states also have laws restricting “strategic lawsuits against public participation” (SLAPPs), by setting a higher burden of proof for cases where a party may try to use litigation to censor or chill the speech of another person (for example, suing a food critic for a negative review).
4. What is “Speech” under the First Amendment? (Pure Speech and Symbolic Speech)
Defining “speech” is not as easy as it sounds. There is more than one kind of speech protected by the First Amendment. It can range from the obvious to much less so. The most obvious type of protected speech is political speech using words, also known as “pure speech.” For example, someone giving a political speech or someone holding a protest poster at that speech is pure speech.
On the other hand, a person’s actions, sometimes called “symbolic speech” or “expressive conduct,” can also be protected speech under the First Amendment. For example, according to the Supreme Court of the United States, burning a flag can qualify as protected symbolic speech.
Not all conduct, however, is protected by the First Amendment. Just because you intend an actiono be “expressive” speech does not guarantee it will be protected. Instead, whether a person’s conduct is “expressive” (and therefore eligible for First Amendment protection) is highly dependent on the context.
Conduct is “expressive” if: (1) there is an intent to convey a particularized message; and (2) under the circumstances, the likelihood is great that the message would be understood by those who view it.[i] Examples of expressive conduct include: kneeling in protest during the national anthem, flag-burning or the desecration of other materials when intended to convey a message, silent marches, making expressive hand gestures, or wearing clothing intended to convey a political, religious, or other expressive message.
[i] Spence v. Wash., 418 U.S. 405, 410–11 (1974) (declaring Washington flag misuse statute unconstitutional as applied to convicted defendant, who displayed a privately owned American flag upside-down with a peace symbol attached to it to protest acts of the U.S. government).
5. The First Amendment places restraints on the government’s ability to limit Free Speech. Is all Speech treated the same? What limits can the government place on Speech within the bounds of the First Amendment?
The government has the authority to regulate Speech in multiple ways. For example, Prior Restraint (Censorship), Different Forums, Content Neutrality, and Time, Place, and Manner Restrictions.
5a. Can the government prevent you from speaking? Why? (Prior Restraint) Yes, through prior restraint. A “prior restraint” refers to a prepublication censorship which prohibits publication of material. This differs from situations where speech is punishable after it is completed. This is unique in that it prevents speech rather than punishes it. Generally, prior restraints are not permissible though are permissible in “exceptional cases,” like those situations that involve national security, or prohibiting obscene publications.
Yes, through prior restraint. A “prior restraint” refers to a prepublication censorship which prohibits publication of material. This differs from situations where speech is punishable after it is completed. This is unique in that it prevents speech rather than punishes it. Generally, prior restraints are not permissible though are permissible in “exceptional cases,” like those situations that involve national security, or prohibiting obscene publications.[i]
[i] Id. at 716.
5b. Are Free Speech rights the same in all settings? (Different Forums—Different Standards)
No, the U.S. Supreme Court differentiates among forums or settings in determining the level of First Amendment limitations on a government’s authority to impose restrictions on speech. The four categories of forums the Court has identified are: 1) traditional public forums; 2) designated public forums; 3) nonpublic forums; and 4) private property.[i]
In all types of public forums, a government restriction on speech is only valid if it is viewpoint neutral; in other words, it must not favor one side of an issue over another.[ii]
[i] Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985) (The Supreme Court has differentiated between “the traditional public forum, the public forum created by government designation, and the nonpublic forum.”).
[ii] Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009) (“Reasonable time, place, and manner restrictions are allowed, . . . but any restriction based on the content of the speech must satisfy strict scrutiny . . . and restrictions based on viewpoint are prohibited.”) (internal and external citations omitted).
5c. Can the government place limits on free speech and, if so, what are they? (Content-Neutrality and Time, Place, & Manner Restrictions)
Yes, the government can place content-neutral restrictions on the “time, place, or manner of speech” and these sorts of restrictions are generally upheld by courts. On the other hand, courts usually strike government restrictions based on the content or viewpoint of the speech or speaker. If the government appears to be picking a side based on a point of view, then chances are, a court may find a First Amendment violation.
Courts hold that a restriction is a “time, place, or manner” restriction where four factors are present:[i]
- The restriction must be content-neutral, both on its face and as-applied;
- Ample alternatives for the speech must exist;
- The government must show there is a substantial state interest; and
- The restriction must be narrowly tailored.
In other words, the government can place restrictions on when a protest occurs, the location of a protest, and the protest method as long as the restrictions are content neutral, ample alternatives for the speech exist, there is a substantial government interest, and the restriction is narrowly tailored to the circumstances.
[i] Perry, 460 U.S. at 45.
6. Does the First Amendment apply to schools? (Private vs Public, K-12 & Universities)
Yes, the First Amendment applies in public schools and public universities, although the rules differ somewhat between these two types of institutions. Private schools and universities, like most other forms of private property, are generally not considered public forums in which First Amendment protections apply. However, while private educational institutions have far more latitude than public schools in regulating and restricting on-campus speech, state and federal anti-discrimination laws, as well as other statutes and regulations, may place limits on the extent to which such schools may regulate speech. Likewise, private institutions may have obligations to uphold free speech rights set forth in student handbooks and code of conduct.
6a. How does the application of Speech Rights in public schools differ between K-12 and Colleges? (Public K-12 & Public Universities)
With respect to K-12 public schools, special free speech considerations come into play that are not present in the college and university setting. The Supreme Court has endorsed the basic proposition that, at least with respect to public schools, students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[i] However, free speech rights in public schools are subject to important limitations that do not normally exist in other public forums. Namely, in order to achieve legitimate educational goals, the right to free speech may be subordinated, or limited. If a student’s exercise of free speech justifies a “reasonable forecast of substantial disruption,” then such speech can be curtailed or restricted.[ii]
In public colleges and universities, on the other hand, the Supreme Court has stated that the First Amendment applies with just as much force on campus as it does in the broader community.[iii] Court precedent makes it clear that universities occupy a special place in First Amendment jurisprudence, given the role of such institutions in the preservation of democracy.[iv] Likely, in part for that reason, campus policies that prohibit certain types of speech are often struck down as unconstitutional restrictions on the freedom of speech.[v]
[i] Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969);
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) (upholding power of school principals to censor school-sponsored student newspapers provided that such censorship serves valid educational purposes).
[ii] Defoe v. Spiva, 625 F.3d 324, 341 (6th Cir.2010).
[iii] Healy v. James, 408 U.S. 169, 180 (1972) (“[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’”).
[iv] Keyishian v. Board of Regents, State Univ. of N.Y., 385 U.S. 589 (1967) (“The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation… Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”)
[v] See Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (holding that the University’s speech code was overbroad because banning insults, epithets, ridicule, or personal attacks on public forum areas in the campus suppressed constitutionally protected speech as well as unprotected speech. The court also held that even if the code was a time, place, or manner restriction, the intrusion on First Amendment speech outweighed any benefit to the University); UWM Post, Inc. v. Bd. of Regents of Univ. of Wisconsin Sys., 774 F. Supp. 1163, 1172 (E.D. Wis. 1991) (holding that a University’s prohibition of racist or discriminatory conduct or other expressive behavior was overbroad, because it was not limited to speech that would amount to fighting words); Doe v. Univ. of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (declaring unconstitutionally vague, and overbroad both on its face and as applied, a University policy prohibiting ‘stigmatizing or victimizing’ individuals or groups on the basis of their membership in certain protected classes; the policy could be applied to a wide array of protected speech under the First Amendment).
7. Does the First Amendment protect “hate speech?” (“Hate Speech”)
Yes. “Hate speech” is a common term attached to expressions that are extremely offensive or that directly call out and oppose the beliefs, conduct, or identity of others. Under the First Amendment, “hate speech” is treated the same as any other speech. No matter how offensive or disgusting, expressions are protected as long as they do not fall into the narrow categories of fighting words, incitement, true threats, defamation, or other unprotected speech.
7a. If “hate speech” is generally protected speech, can expressions of hate have legal consequences? (“Hate Speech” vs Hate Crimes)
Yes, while “hate speech” is protected as speech, “hate speech” along with certain conduct can have legal consequences. Hate speech, when used while committing a crime, can be used as evidence of bias and may constitute a hate crime. A hate crime is generally defined as a crime against a person or property that is motivated by bias, prejudice or hatred toward the personal or perceived personal characteristics of a victim including: race, color, religion, disability, sexual orientation, national origin, gender, or gender identity.
8. Are there types of Speech not protected by the First Amendment? (Fighting Words, True Threats, and Incitements)
Yes, the U.S. Supreme Court has held that the First Amendment does not protect certain narrow categories of speech, which can result in violence. . Three such categories of unprotected speech are “fighting words,” “true threats,” and “incitement.” Although legally distinct, these categories often overlap and speech is often challenged under two or more categories. All three categories relate to the instigation of violence or lawlessness.. Fighting words inflict injury upon a person or provoke the listener to violence.. True threats are threats of violence by the speaker or an ally of the speaker against the listener. Incitement is when the speaker seeks to provoke the listener(s) to commit violence against some third party, and has a likelihood of succeeding.
9. How does the First Amendment relate to the Second?
The First Amendment guarantees a right to free speech. The Second Amendment guarantees an individual right to keep and bear arms. [i]
The Constitution does not grant an express right to bring a gun to a public gathering, be in a protest, town meeting, etc. However, other sources of law, such as state constitutions and statutes, may provide rights broader than what the Supreme Court has interpreted the Second Amendment to require. The Supreme Court has not directly addressed how this right plays out in the context of protests, rallies, and similar public gatherings.
Federal, state, and local government may limit the right to keep and bear arms, although the parameters of their authority is still being developed by the courts.[ii] Because Second Amendment doctrine is still evolving, addressing the presence of firearms at public protests and rallies will largely require turning to state and local law.
There is wide variation in how states and municipalities approach the regulation of firearms. These laws are frequently updated and revised. As such, it is paramount for any government official or concerned citizen to understand the specific local laws that apply in his or her jurisdiction—not only at the state level, but even at county and municipal level. While this patchwork of laws can be complex, both gun rights advocacy organizations and groups advocating for greater regulation of firearms have produced a number of helpful resources to assist the public in understanding gun laws in their respective states.[iii] Gun laws are often highly specific with respect to what they prohibit and allow. Minute details and variations will matter a great deal.
[i] District of Columbia v. Heller, 554 U.S. 570, 628 (2008) (striking down the District of Columbia’s strict handgun ban on Second Amendment grounds, with the majority asserting that “the inherent right of self-defense has been central to the Second Amendment right,” and concluding that the Second Amendment confers on private individuals a right to keep basic firearms, including handguns, at home for self-defense).
[ii] McDonald v. City of Chicago, 561 U.S. 742 (2010) (holding that the Second Amendment is a “fundamental right,” which limits state and local governments as well as the federal government, as Heller had only addressed the Second Amendment as applied to the federal government).
[iii] See State Gun Laws, National Rifle Association Institute for Legislative Action, available at https://www.nraila.org/gun-laws/state-gun-laws; Law Center to Prevent Gun Violence, available at http://smartgunlaws.org/search-gun-law-by-state/.
9a. Can guns be brought to protests and rallies? (Guns at Rallies; Guns as “Expression”)
It depends. The First Amendment does not generally protect the right of a protester to carry a weapon. Carrying a gun may indeed constitute symbolic speech or expressive conduct,[i] but guns can also be used to intimidate and threaten. If construed as expressive conduct, carrying a gun is only protected from suppression when the government’s reason for restraining it relates to its content.
With respect to the Second Amendment, the Supreme Court has not specifically addressed the constitutionality of banning guns at rallies and other public events. State-specific requirements and prohibitions will likely be the most relevant laws to consider.
[i] For example, in 1967 a group of Black Panthers entered the California statehouse while carrying firearms to protest the Mulford Act, which proposed to outlaw open carry in California.
9b. Can local governments place restrictions on guns at rallies and protests?
Maybe. Local laws dictate. Whether a municipality or other government body can condition a permit on firearms not being present at a rally implicates both the First and Second Amendments, as well as jurisdiction-specific gun laws. With respect to the First Amendment, the key question is whether such a requirement is a valid time, place and manner restriction. Generally, such requirements should likely be deemed valid under the First Amendment, although few courts have addressed the issue in a way that is directly analogous to the issue of guns at protests.[i] Permitting schemes—the ability of the government to require conditions be met for a permit to protest be issued, must be content neutral and comply various other requirements in order to survive constitutional scrutiny. A generally applicable and consistently applied prohibition on firearms and weapons at public events should not be problematic under the First Amendment, whereas decisions made on a case-by-case basis could be subject to challenge. Second Amendment restrictions are still being established by the courts. Look to local and state laws.
[i] N. Ind. Gun & Outdoor Shows, Inc. v. Hedman, 104 F. Supp. 2d 1009, 1010 (N.D. Ind. 2000) (finding that a gun show sponsor failed to show that the First Amendment supported a permanent injunction to prevent a convention center from enforcing its “no guns” policy because since the sponsor failed to not show that the regulated conduct contained an expressive component.)
10. Why should we as Civil Rights advocates resist using censorship to combat hate speech?
Free Speech rights have been vital to the movement for civil rights. Indeed, there were times when lawsuits provided critical protection to civil rights leaders to organize, protest, reveal injustice, and advance the fight for civil rights. In a democracy, it is essential that the government does not control access to information. People targeted for discrimination on the basis of race, color, national origin, gender, gender identity, sexual, religion or disability are painfully aware of the fact that they cannot rely on the government to protect their rights. There is no question that people also use free speech to attack civil rights, but for civil rights advocates, the benefits of the free flow of information free from government censorship far outweigh the risks. As civil rights advocates, we must always remember that people targeted for discrimination are in the best position to speak about the harms they are experiencing. Enacting laws around hate speech opens the door for the government to limit their speech by defining hate speech. Imagine a world where the government said any speech that runs contrary to government policies is hate speech. A government that has the power to define and censor hate speech today could censor dissenting opinions tomorrow.