LibGuides: Hot Topic: First Amendment Free Speech: Home

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The First Amendment contains five basic freedoms:

The First Amendment to the Constitution of the United States declares that "Congress shall make no law... abridging the freedom of speech."

Over the course of roughly the last 50 years the U.S. Supreme Court has interpreted what Free Speech means.

To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).
Burn the cross as an expression of racial bigotry and hatred. R.A.S. v St Paul 505 U.S. 377 ; Viginia v. Black, 538 U.S. 343 (2003).
Espouse the violent overthrow of the government as long as it is mere abstract advocacy and not an immediate incitement to violence. Brandenburg v. Ohio, 395 U.S. 444 (1969) Schenck v. United States, 249 U.S. 47 (1919).
Traffic in sexually explicit erotica as long as it does not meet a rigorous definition of “hard core” obscenity. Roth v. United States, 354 U.S. 476 (1957).
Defame public officials and public figures with falsehoods provided they are not published with knowledge of their falsity or reckless disregard for the truth. Cohen v. California, 403 U.S. 15 (1917).
Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines, 393 U.S. 503 (1969).

Freedom of Speech does not include the right:

to incite actions that would harm others (e.g., “[S]hout[ing] ‘fire’ in a crowded theater.”). Schenck v. United States, 249 U.S. 47 (1919).
to make or distribute obscene materials. Roth v. United States, 354 U.S. 476 (1957).
to burn draft cards as an anti-war protest. United States v. O’Brien, 391 U.S. 367 (1968).
to permit students to print articles in a school newspaper over the objections of the school administration. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).
of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick, 551 U.S. 393 (2007).

First Amendment Center, 2017