Freedom of Speech

The Free Speech Clause of the First Amendment bars the government from punishing or restricting expression based on its content, with a small set of historically recognized exceptions. Modern doctrine gives political speech the strongest protection of any category.

The Free Speech Clause is short and absolute on its face: "Congress shall make no law... abridging the freedom of speech." The Supreme Court has read those words to protect a vast range of expression, including writing, publishing, symbolic acts like flag burning, campaign donations, and association with controversial groups. The government generally cannot regulate speech based on its content or viewpoint. It must satisfy strict scrutiny if it tries, meaning it must show a compelling interest and a narrowly tailored means. The Court has carved out a few historically recognized exceptions. Incitement to imminent lawless action can be punished, under the standard set in Brandenburg v. Ohio in 1969. True threats and fighting words are unprotected. Obscenity is unprotected under the Miller test, though the category is narrow. Defamation by a public figure requires actual malice under New York Times v. Sullivan. Commercial speech receives a lower tier of protection. Outside those exceptions, even speech that is hateful, false, or deeply offensive remains protected against government action. The doctrine has expanded in some areas and contracted in others. Symbolic speech was protected in Tinker v. Des Moines and Texas v. Johnson. Campaign spending was held to be protected speech in Citizens United v. FEC. The amendment binds only the government. It does not require any private platform to publish anyone, and it does not prevent private actors from imposing social consequences for speech. The line between government and private action is itself contested in an age of large platforms and government pressure on them.