Here’s what to know about free speech protections outlined by the First Amendment
This article is part of U.S. Democracy Day, a nationwide collaborative on Sept. 15, the International Day of Democracy, in which news organizations cover how democracy works and the threats it faces. To learn more, visit usdemocracyday.org.
One of the very first things that the U.S. Constitution lays out is freedom of speech.
The Bill of Rights is the first of the 10 amendments to the Constitution. It is considered a blueprint for protecting citizens’ fundamental rights.
“A chief aim of the Constitution as drafted by the Convention was to create a government with enough power to act on a national level, but without so much power that fundamental rights would be at risk,” says The U.S. White House.
The First Amendment clearly states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
However, freedom of speech is a loose term. “Speech” doesn’t just mean your spoken word. This term covers a broad category of expressions like written word, clothing, or even not speaking.
So, what kind of speech does the First Amendment protect?
Understanding what is free speech under the U.S. Constitution
According to the United States Courts, both written speech and symbolic words can be protected. However, certain situations are unconstitutional.
According to the United States Courts, the First Amendment freedom of speech includes the right:
Not to speak. Example: refusing to salute the flag (West Virginia Board of Education v. Barnette, 1943).
Expression. Example: students wearing black armbands to protest war (Tinker vs. Des Moines,1969).
Using offensive words or phrases to convey a message. Example: wearing a shirt that says “F--- the draft”(Cohen v. California, 1971).
Donating money. Example: contributing to a political campaign (Buckley v. Valeo, 1976).
Advertising personal products and professional services (with some restrictions). Example: advertising done by lawyers (Bates v. State Bar of Arizona, 1977).
Symbolic Speech. Example: burning a flag (Texas v. Johnson, 1989).
The constitution does not protect:
Inciting imminent lawless action. Example: making a speech at a KKK rally (Brandenburg v. Ohio, 1969).
Making or distributing obscene materials. Example: Mailing porn (Roth v. United States, 1957).
Burning a draft card. Example: United States v. O’Brien, 1968.
Students writing in school publications: Examples: Students printing articles in newspapers that disrespect authority (Hazelwood School District v. Kuhlmeier, 1988).
Obscene speech at school event. Example: Suspending a student for using sexual imagery to nominate classmate for student government (Bethel School District #43 v. Fraser, 1986).
Students advocating illegal drug use on school property or events. Example: Showing a sign that says “bong hits 4 Jesus,” during school supervised activity (Morse v. Frederick, 2007).
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What Texas’ constitution says about free speech
Texas, as an independent state, still tends to the U.S. Constitution, but we also have a state constitution that clearly states no tolerance for libel.
According to Cornell Law, “Libel is a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person’s reputation; exposes a person to public hatred, contempt or ridicule; or injures a person in their business or profession.”
Texas’ Bill of Rights advises residents to understand that speech can come with consequences.
“Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”
To sue for libel, you must have evidence to show the court.