{"id":30878,"date":"2021-07-08T12:41:28","date_gmt":"2021-07-08T17:41:28","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/constitution\/amendment1\/does-the-first-amendment-protect-speech-that-advocates-illegal-c.html"},"modified":"2024-08-07T15:33:31","modified_gmt":"2024-08-07T20:33:31","slug":"does-the-first-amendment-protect-speech-that-advocates-illegal-c","status":"publish","type":"constitution","link":"https:\/\/constitution.findlaw.com\/amendment1\/does-the-first-amendment-protect-speech-that-advocates-illegal-c.html","title":{"rendered":"Does the First Amendment Protect Speech that Incites Illegal Conduct?"},"content":{"rendered":"\n
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Does the First Amendment Protect Speech that Incites Illegal Conduct?<\/h1>\n
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\n By Balrina Ahluwalia, Esq.<\/a> | Legally reviewed by Edward Maggio, Esq.<\/a>\n | Last reviewed\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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As a category of speech excluded from First Amendment protection, inciting language may be banned and even penalized by the government. In this article, we examine Supreme Court cases that help us understand the standards related to regulation of incitement and other speech that advocates illegal conduct.<\/p>\n\n <\/div>\n\n

The Bill of Rights<\/a> consists of the first ten amendments to the U.S. Constitution<\/a>. They were introduced to safeguard individual liberties and restrict governmental authority. The First Amendment<\/a> reflects these democratic ideals by establishing several freedoms, including the freedom of speech. Its free speech clause reads:<\/p>\r\n

\u201cCongress shall make no law\u2026 abridging the freedom of speech\u2026\u201d<\/i><\/p>\r\n

This language sets up the First Amendment as a prohibition on Congress<\/a>, our federal legislature. In other words, Congress may not pass laws that infringe upon our constitutional right to free speech.<\/p>\r\n

The U.S. Supreme Court<\/a> has determined that this prohibition extends beyond Congress. Through the passage of the Fourteenth Amendment<\/a> and the doctrine of incorporation, the Supreme Court has concluded that this prohibition applies to government action of any kind and at any level that restricts free speech.<\/p>\r\n

Also known as state action<\/a>, government action can take many forms, including court injunctions, federal agency funding, public school policies, and local ordinances.<\/p>\r\n

The First Amendment mainly restricts government regulation of private speech. It doesn\u2019t prohibit restrictions on government speech<\/a>. It also generally doesn’t apply to speech restrictions imposed by private parties. For example, private property owners may generally set rules restricting speech on their property without raising First Amendment concerns.<\/p>\r\n

Therefore, our constitutional freedom of speech functions as a restriction on the government\u2019s ability to regulate speech and the free exchange of ideas.<\/p>\r\n

Expression as Speech<\/h2>\r\n

The Court has also determined that our constitutional right to free speech includes the freedom of expression<\/a>. Accordingly, it includes the written word, symbolic speech<\/a>, and other types of expressive conduct. For example, wearing an armband to protest<\/a> a war or participating in a parade are both forms of speech or expression protected by the First Amendment.<\/p>\r\n

Unprotected Speech Categories<\/h2>\r\n

However, the right to free speech isn\u2019t absolute, and the Court has established a limited number of unprotected speech categories. They include:<\/p>\r\n