Widely recognized as a cornerstone of American democracy, the right to free speech plays a vital role in American jurisprudence. We can better understand this constitutional right by examining its evolution and treatment in U.S. Supreme Court cases.

The First Amendment

In 1789, James Madison authored the Bill of Rights, which was introduced to the First Congress with the aim of safeguarding individual liberties and limiting governmental power. It upholds democratic principles by guaranteeing freedom of speech, among other rights.

What is the Free Speech Clause?

The free speech clause of the First Amendment to the U.S. Constitution reads:

“Congress shall make no law…abridging the freedom of speech…"

Initially, it was understood that the First Amendment only applied to the federal legislature. But, in Gitlow v. New York, the Supreme Court held that the Fourteenth Amendment’s due process clause extends free speech protection to actions by state governments. This judicial approach is known as "incorporation."

Some Supreme Court justices have advocated for total incorporation of the Bill of Rights. But, the Court generally follows a selective incorporation approach, meaning the justices extend certain protections to actions by state governments.

In addition to freedom of speech, most of the Bill of Rights has been incorporated in this way, including:

• Freedom of religion
• Right to legal counsel
• Protection against self-incrimination

Likewise, in Herbert v. Lando, the Supreme Court clarified that the First Amendment’s free speech protection applies to all branches, not just the legislature, and all governmental agencies at any level (state, local, etc.). Therefore, the First Amendment protects our right to free speech by prohibiting governmental action at any level that restricts the freedom of speech.

This prohibition applies to governmental action, also known as state action. It generally doesn’t extend to the actions of private entities. But, the Supreme Court has carved out some narrow exceptions to apply this prohibition to certain private actors and actions that restrict this freedom.

What Types of Speech Are Protected by the First Amendment?

In the context of the First Amendment, the Supreme Court has determined that protected speech encompasses expressive conduct and verbal communication. These can include conduct, the written word, and symbolic actions. For example, the Court held that the following expressions constituted protected speech:

• Flag burning in protest (Texas v. Johnson)
• College students donning armbands to protest a war (Tinker v. Des Moines)
• Not saluting the American flag (West Virginia Board of Education v. Barnette)

However, free speech rights are not absolute. Several Supreme Court decisions recognize situations where the government may regulate or restrict speech.

Permissible Restrictions on Free Speech

The Supreme Court has established several permissible restrictions on free speech, as well as frameworks for determining whether state action restricting speech is constitutional.

For example, the Court held in Cox v. New Hampshire that in order to preserve public safety, restrictions on the time, place, and manner were permitted for speech. These restrictions are generally constitutional as long as they are not content-based.

To survive a constitutional challenge, the state must show that its time, place, and manner restrictions:

• Are content-neutral
• Are narrowly tailored to serve a significant state interest
• Leave adequate alternative means of expression

Conversely, regulation of free speech on the basis of subject matter, topics, or messaging poses constitutional issues.

Content-Based Restrictions

Content-based restrictions are at odds with the value our democracy places on public discourse and the unfettered exchange of ideas. The Supreme Court held in Reed v. Town of Gilbert that content-based restrictions seeking to regulate protected speech are “presumptively unconstitutional.”

Content-based laws are seldom upheld. Courts generally analyze their constitutionality using a strict scrutiny standard. This legal standard requires a content-based regulation to be struck down unless it’s the least restrictive means necessary to advance a compelling state interest.

Viewpoint Discrimination

Viewpoint discrimination occurs when regulations on speech are based on a particular belief system or point of view. Not surprisingly, the Supreme Court considers such restrictions to be an “egregious form of content discrimination.”

Not All Speech is Protected Speech

The Supreme Court has categorized some content as unprotected speech and thus subject to government regulation, even though it’s content-based.

For example, the Court recognized in Brandenburg v. Ohio that speech generally advocating for lawlessness, violence, or force is protected. However, speech “directed at inciting or producing imminent lawless action” and likely to bring about such a result is not. In that case, the government could take action against the speaker.

Likewise, the Court has categorized obscenity as unprotected expression. However, what is deemed obscene by the courts changes over time. Other types of unprotected speech include:

• Defamation
• Child pornography
• Fraud
• Threats or "fighting words"

Restrictions on these types of speech, however, must still meet constitutional standards.

Government Speech Doctrine

The First Amendment protects private speech from governmental restrictions. However, government entities can control or restrict the expression of those speaking on their behalf. Government officials and workers have different First Amendment rights than those who work in the private sector.

Government speech can also extend to private actors who benefit from government funding. For example, the Court held in Rust v. Sullivan that the government could restrict doctors who received certain federal funds from speaking with their patients about abortion.

Government speech may even be subject to content-based restrictions or viewpoint discrimination without First Amendment concerns. This principle has come to be known as the government speech doctrine. Without it, in the Supreme Court's view, the government couldn’t function.

Common Free Speech Challenges

Laws that impact free speech can still face a wide host of constitutional challenges, depending on the circumstances. Some predominant First Amendment challenges include:

• Vagueness: The speech restriction is so difficult to understand that an ordinary person of reasonable intelligence can’t accurately distinguish between prohibited/permitted speech.
• Overbreadth: The restriction casts too wide a net and impacts more speech than intended.
• Prior Restraint: The regulation restricts speech before it occurs.

The First Amendment's free speech clause represents not only democratic values but also American values. Despite the need for free expression, public debate, and diverging opinions, this right can sometimes pose challenges to important governmental and societal interests.

Through its First Amendment cases, the Supreme Court has established several legal precedents to balance these often-competing interests. This growing body of constitutional law continues to inform our understanding of this long-revered right.