5.5: Speech

The First Amendment also forbids Congress from “abridging the freedom of speech.” This freedom includes both spoken and written words, as well as nonverbal forms of expression. Free speech is essential to what Supreme Court Justice Oliver Wendell Holmes called the “marketplace of ideas.” The open exchange of information and opinion makes democracy possible. If citizens were unable to speak their mind about politics, it would be impossible to effectively debate political issues or criticize government wrongdoing.

Despite its importance, freedom of speech, like freedom of religion, is not infinite. One relevant factor is the propensity for speech to result in violence. In the 1969 case Brandenburg v. Ohio (which centered on an inflammatory speech delivered at a Ku Klux Klan rally) the Supreme Court ruled that the government can restrict incitement, speech which advocates for “imminent lawless action” and is likely to provoke such action. By this standard, the government could punish you for leading an angry mob to vandalize a building, even if you yourself didn’t directly participate in the vandalism. However, a vague call for violence at some point in the future would not constitute incitement, as there would be no immediate risk of someone heeding such a call.

Another unprotected category of speech is fighting words. As defined in the 1942 case Chaplinsky v. New Hampshire, fighting words are speech directed at a target with the aim of provoking a violent response. Unlike incitement, fighting words need not contain explicit instructions to commit violence. For example, if you goaded someone into a barfight through verbal attacks and insults, you could be held legally responsible for starting the ruckus, even if the other person threw the first punch (and even if you weren’t literally “asking for it”).

Free speech protections also do not extend to obscenity. Since Miller v. California in 1973, the Supreme Court has defined obscenity as offensive depictions of sexual conduct which lack serious literary, artistic, political, or scientific value. This standard is easier stated than applied. What is and isn’t considered offensive varies by place and time, and the court has often been asked to judge whether a particular example of speech is offensive enough to qualify as obscenity. (Former Supreme Court Justice Potter Stewart is most famous today for writing that, while he might not ever be able to define hard-core pornography in precise terms, “I know it when I see it.”)

While it is part of the legal definition of obscenity, offensiveness by itself does not exclude speech from First Amendment protection. For example, the Supreme Court has prevented the government from imposing speech restrictions on flag burning (in the 1989 case Texas v. Johnson) and ethnic slurs (in the 2017 case Matal v. Tam). In general, for a speech restriction to be constitutional, it must be based on the context in which the message is expressed, rather than on the content of the message. Hate speech, the purpose of which is to demean members of a target group, may be restricted if it falls into another restricted category (such as incitement) but not solely on the basis of the hatred it expresses.

Freedom of the press, another important First Amendment right, will be covered in depth in Chapter 15. However, as far as the Supreme Court is concerned, the protections afforded to freedom of the press are largely the same as those afforded to freedom of speech. Your own speech maylack the reach and impact of the New York Times, but from a constitutional perspective your expression is just as protected as the Gray Lady’s.