Freedom of speech

Freedom of speech is a right, as stated in the First Amendment to the Constitution of the United States, to express information, ideas, and opinions free of government restrictions based on content. The forms of expression protected under the First Amendment include not only the speaking or writing of words but also the effective nonverbal communication of particular messages through any form of “symbolic speech,” including picketing, sit-ins, the display or destruction of flags, and the performance of respectful or disrespectful gestures.

A modern legal test of the legitimacy of free speech protections was expressed in a unanimous Supreme Court ruling (written by justice Oliver Wendell Holmes, Jr.) in Schenk v. U.S. (1919). “The most stringent protection of free speech,” the Court declared,

“would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.…The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Many cases involving freedom of speech also have concerned defamation, obscenity, and prior restraint.

Freedom of speech broadly protects expression from governmental restrictions. Thus, for instance, the government may not outlaw antiwar speech, speech praising violence, racist speech, pro-fascist or pro-communist speech, and the like. Nor may the government impose special taxes on speech on certain topics or limit demonstrations that express certain views. The government also may not authorize civil lawsuits based on people’s speech, unless the speech falls within a traditionally recognized First Amendment exception. This is why, for example, people may not sue for emotional distress inflicted by offensive published articles about them, unless the articles are not merely offensive but include false statements that fall within the defamation exception.

Freedom of speech is not limited to political speech. It also covers speech about science, religion, morality, and social issues, as well as art and even personal gossip.

Despite the broad freedom of speech guaranteed by the First Amendment, there are some historically rooted exceptions. First, the government may generally restrict the time, place, or manner of speech, if the restrictions are unrelated to what the speech says and leave people with enough alternative ways of expressing their views. Thus, for instance, the government may restrict the use of loudspeakers in residential areas at night, limit all demonstrations that block traffic, or ban all picketing of people’s homes. Second, a few narrow categories of speech are not protected from government restrictions. The main such categories are incitement, defamation, fraud, obscenity, child pornography, fighting words, and threats. As the Supreme Court held in Brandenburg v. Ohio (1969), the government may forbid “incitement”—speech “directed at inciting or producing imminent lawless action” and “likely to incite or produce such action” (such as a speech to a mob urging it to attack a nearby building).

Explore Britannica Premium!

The trusted destination for professionals, college students, and lifelong learners.

SUBSCRIBE

In contrast, speech urging action at some unspecified future time may not be forbidden. Defamatory lies (which are called “libel” if written and “slander” if spoken), lying under oath, and speech-based fraud may also be punished. In some instances, even negligent factual errors may lead to lawsuits. Such exceptions, however, extend only to factual falsehoods; expression of opinion may not be punished even if the opinion is broadly seen as morally wrong.

Personalized threats of illegal conduct, such as death threats, may also be punished. No exception exists for so-called hate speech (see also hate crime). Racist threats are unprotected by the First Amendment alongside other threats, and personally addressed racist insults might be punishable alongside other fighting words. But such speech may not be specially punished because it is racist, sexist, anti-LGBTQ, or hostile to some religion.