10 Things That Aren't Free Speech

SaraRose Martin shows off her school newspaper in Warrenton, Virginia. Martin wrote a story on 'dabbing,' a new way that teens are consuming marijuana, which was censored by the principal, but a local news website published it.
Nikki Kahn/The Washington Post via Getty Images

Free speech is something most Americans cherish. Yet, the U.S. Supreme Court often struggles to decide exactly what it is. The First Amendment to the U.S. Constitution merely states, "Congress shall make no law ... abridging freedom of speech." But it does not define the term.

Over the past centuries, the Court has honed the definition, through various rulings. For example, it decided "free speech" includes the right not to speak; to speak symbolically (e.g., burning the American flag as a means of protest); to contribute money to political campaigns, although only in certain circumstances; and to utter certain offensive words and phrases when you're trying to convey a political message.


Other rulings specify free speech does not include the ability to create and distribute obscene materials; to promote illegal drug use at a school-sponsored event (if you're a student, anyway); and to burn draft cards as a means of protest [source: United States Courts].

You can see how tricky the issue is when you consider the Supreme Court ruled flag-burning is an acceptable form of free speech, but not draft-card burning. The reason, ostensibly, is that burning draft cards can affect the efficient functioning of the Selective Service System, while burning the flag doesn't harm any important governmental objectives [source: United States Courts].

Additionally, many people fail to understand that the concept of free speech is related to the federal, state and local government. For the most part, they cannot regulate Americans' speech. But private entities such as Facebook, Twitter and Craigslist certainly can (and do), by deleting posts deemed racist, obscene, violent or undesirable [source: Gomez].

Let's look at some of the main types of "speech" that are not free in the U.S. At least not today.

10: Obscenity

Japanese artist Megumi Igarashi shows small mascots shaped to represent vaginas, at a press conference after her first trial hearing in Tokyo. Igarashi was arrested on obscenity charges for distributing 3D scans of her own genitals.

The Supreme Court first tackled the issue of obscenity and freedom of speech in the 1957 landmark case Roth v. United States. A jury convicted publisher Sam Roth of using the mail to advertise and distribute material with sexual content. Through his New York bookselling business, he mailed circulars and a book with sexual content — "The Story of Venus and Tannhäuser," by Aubrey Beardsley. Roth fought back, alleging the federal obscenity restrictions infringed upon his freedom of speech. But the Court ruled against Roth, saying obscene speech is not protected under the First Amendment [sources: PBS, Oyez].

Then, in 1973, Californian Marvin Miller sent out a mass-mailing advertising "adult" material for sale. Some brochure recipients complained to the police, and a jury later convicted Miller of violating a state statute prohibiting such an action. Miller appealed his conviction all the way up to the Supreme Court, which upheld Miller's conviction and established its now-famous "three-pronged test" for obscenity. Something is obscene, the Court ruled, if [sources: FindLaw, Hudson Jr.]:


  • "The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interest
  • The work describes or portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law
  • The work, taken as a whole, lacks serious literary, artistic, political or scientific value"

The Court's ruling also said juries can determine offensiveness by local standards, not a national one [source: PBS].

9: Child Pornography

Former Subway pitchman Jared Fogle (C) walks out of the courthouse on Aug. 19, 2015 in Indianapolis, Indiana. Fogle later pled guilty to federal charges relating to child pornography and having sex with minors.
Joey Foley/Getty Images

While some types of pornography are protected by the First Amendment, child pornography is definitely not. The main issue that trumps free speech in this case is the protection and prevention of the sexual exploitation of minors.

The Supreme Court addressed the issue in 1982, when it ruled in New York v. Ferber that states could prohibit any child porn that didn't meet the obscenity standards set forth in the Court's 1973 Miller v. California decision. The Court took things a step further in its 1990 Osborne v. Ohio ruling, which said states can punish individuals for private possession and viewing of child pornography, as this still encourages the exploitation of kids [sources: FindLaw, Hudson Jr.].


But some challenges to the child pornography laws prevailed. After Congress passed the Child Pornography Prevention Act in 1996, aimed at stemming child porn on the Internet, including virtual child porn, the Court struck down two of its provisions regarding depictions that appear to be of minors engaging in sexually explicit conduct. Ruling in Ashcroft v. Free Speech Coalition, the Court decreed those provisions were too expansive, as they could be used to, say, prohibit youthful-looking adult actors from filming a sexual scene [source: Hudson Jr.].

In 2003, Congress passed the PROTECT act to, in the Senate's words, "restore the government's ability to prosecute child pornography offenses successfully" [source: Hudson Jr.].

8: Yelling 'Fire!' in a Crowded Theater (Incitement to Imminent Lawless Action)

People flock to Times Square, New York City, for the New Year's Eve celebration. Yelling 'fire' in a place like this would probably not be protected by the First Amendment. Unless it were true.
Pola Damonte via Getty Images

In 1919, the U.S. Supreme Court decided that context is everything when it comes to protected speech. Specifically, you cannot say anything that might incite others to some type of lawless action, or to an action that would harm others, in the very near future ("clear and present danger"). The famous example used to explain this speech prohibition came from Supreme Court Justice Oliver Wendell Holmes, who likened it to falsely shouting, "Fire!" in a crowded theater. You can shout "Fire!" in your home or backyard, but not in an enclosed, crowded place where such language could cause a panic and possibly injury and death. Similarly, you can't, say, egg on a crowd of angry, young men to attack another person [sources: McBride, Volokh].

The case that spurred this decision was United States v. Schenck. Charles Schenck was a socialist who tried to pass out anti-draft flyers to newly drafted American servicemen during World War I. His flyers said the draft was the same as slavery, a practice outlawed in the Constitution's 13th Amendment, and told new draftees to try to repeal the draft. Police charged Schenck with violating the country's new Espionage Act, and a jury later convicted him.


Schenck appealed on the grounds that the Espionage Act was illegal because it violated the First Amendment's free-speech provisions. The Court ruled against Schenck due to context: It's fine to pass out such flyers during peacetime, but not wartime, when they could incite national insubordination. This ruling stood until 1969 when the Court said that the "imminent lawless action" test could only allow the government to limit free speech when it incited unlawful action to take place sooner than police could arrive to prevent it [source: McBride].

7: Fighting Words

A supporter of a Brazil referendum to ban weapon sales argues with an opponent. In the U.S., words that are likely to start a fight are not protected by the First Amendment.
Andre Vieira/MCT/MCT via Getty Images

Just as the First Amendment doesn't allow you to spur others to illegal or lawless actions, it doesn't protect you from uttering "fighting words." Fighting words are insults you hurl at another person in face-to-face conversation, which are likely to immediately start a fight. The U.S. Supreme Court came up with the "fighting words" doctrine in 1942 in Chaplinsky v. New Hampshire.

Walter Chaplinsky, a Jehovah's Witness, was distributing religious literature in New Hampshire in 1940. A group of people didn't appreciate it when he called other religions "a racket," and mobbed him. The police stepped in, ushering Chaplinsky to the police station for protection. But when he got there, Chaplinsky berated the city marshal, allegedly calling him "a goddamned racketeer" and "a damned Fascist." The marshal promptly arrested him for breach of peace, and a jury later convicted him in superior court [source: Hudson Jr.].


Chaplinsky appealed his conviction all the way up to the U.S. Supreme Court, but lost. The Court agreed with the New Hampshire Supreme Court's ruling, which called Chaplinsky's language "dangerous words." U.S. Supreme Court Justice Frank Murphy wrote in the Court decision, "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include ... the insulting or 'fighting' words — those which by their utterance inflict injury or tend to incite an immediate breach of the peace" [source: Hudson Jr.]

Although the Court never overturned the Chaplinsky decision, First Amendment scholars often categorize it as a troubling one, in part because many state courts use it to uphold the convictions of those who criticize the police.

6: Writing Whatever You Want About Someone (Libel)

Students cover their mouths during an anti-Cybercrime Law protest in front of the Philippine Supreme Court in Manila. The Court declared constitutional several provisions in the Cybercrime Law including the one that penalizes online libel.
© Rouelle Umali/Xinhua Press/Corbis

Libel generally means publishing or writing a defamatory statement about someone you know is not true (as opposed to "slander," which is an oral statement) [source: Nolo]. But there is also something called "group libel."

In 1950, the state of Illinois prosecuted Joseph Beauharnais for "group libel" — specifically, for defaming African-Americans living in Illinois. (The defendant was arrested for distributing leaflets that asked Chicago government to "halt the further encroachment, harassment and invasion of white people ... by the Negro" [source: Oyez].)


The U.S. Supreme Court ruled in 1952 (Beauharnais v. Illinois) that his conviction was lawful, because you can't make hateful statements about racial or religious groups unless you can prove what you say is true, and that you're saying these things with "good motives" and for "justifiable ends." This ruling became known as the group libel law. As the years passed, however, legal experts deemed the group libel law a poor law. The Supreme Court never repealed the group libel law, yet passed various restrictions to it [source: Volokh].

For example, its Garrison v. Louisiana (1964) ruling basically said it's not unconstitutional to convict someone of libel, but if you do so you must prove the person acted with malice and that the person made libelous statements "with knowledge of their falsity or with reckless disregard of whether they were false or not."More recently, in 1992, the Court ruled unanimously in R.A.V. v. City of St. Paulthat you can't single out bigoted speech as unconstitutional and illegal [sources: Volokh, Oyez, Lisby].

5: Comments Made While Holding Certain Occupations

Coalition forces (including U.S. military) train Iraq's Kurdish Peshmergas. Regardless of personal feelings, U.S. military personnel are not allowed to denigrate the president or Congress.
Yunus Keles/Anadolu Agency/Getty Images

Free speech isn't uniformly protected in all workplace environments. Certain employees may have their speech muzzled to some extent; for instance, government employees such as teachers, police and members of the military. Military personnel, for example, can't denigratethe president and Congress according to the United States Code of Military Justice, or UCMJ.

Police officers may speak out on a matter of "public concern," although such speech might be limited if it would lead to disruption in the workplace. And teachers and administrators in public schools have to ensure students have a safe, orderly environment that's conducive to learning. For instance, a teacher could write a letter to the editor complaining about a school's lax spending policies, as that would be a matter of public interest. But if that teacher wrote a letter saying she had been unfairly targeted by the principal, the school district would be within its rights to react. In general, however, the default position is to allow free speech [sources: Center for Public Education, Policinski, Ryan].


4: Burning Draft Cards

Antiwar demonstrators burn their draft cards on the steps of the Pentagon in Washington, D.C. during the Vietnam War. The Supreme Court ruled that burn a draft card is not protected speech.
Hulton Archive/Getty Images

Americans were very conflicted over the Vietnam War, with many opposed to the country's involvement. One such American, David O'Brien, registered his protest of the war by burning his draft card at a Boston courthouse. A jury later convicted him of breaking a federal law that prohibited burning or mutilating a draft card. He fought back, arguing that his conviction prohibited his freedom of speech. In 1968, the U.S. Supreme Court took up his case [source: Oyez].

Seven of the Court's nine justices agreed O'Brien was rightly convicted because the federal statute that forbids altering a draft card is a fair one. The justices said, in part, that the government can create statutes that further an important governmental interest, assuming that interest isn't related to free speech or its suppression. They also agreed that if a governmental regulation resulted in an incidental restriction on an alleged First Amendment freedom — such as the draft-card-burning situation — it's OK as long as the incidental restriction isn't any greater than necessary in order for the government to achieve its interest [source: Case Briefs].


3: School Newspapers

Co-editor-in-chiefs Alisha Compton and Erin Fowler (blue shirt) deliver the Chantilly High School (Virginia) newspaper during lunchtime. The school is one of the few where the principal does not vet student publications in advancce.
Kate Patterson for The Washington Post via Getty Images

It seems so clear: Since professional journalists have boatloads of First Amendment protections regarding freedom of speech, so must budding high school journalists working on their school newspapers or yearbooks.

But it isn't so. Hazelwood School District v. Kuhlmeier, a 1988 U.S. Supreme Court ruling, stipulates that public school officials get to decide what is printed in school publications, not the student journalists. Although school officials do need a valid educational reason for censoring a given article or photo, they still have rather broad rights, partly because schools aren't considered open, public forums [source: Hudson Jr.].


The ruling came from a 1983 incident at Hazelwood East High in Missouri. Students were planning articles on teen pregnancy and the impact of divorce on teenagers when their principal nixed them. The pregnancy article wasn't suitable for younger students, the principal said, plus it created privacy concerns by including pregnant students, even though under fake names.

Some students sued all the way up to the U.S. Supreme Court, which ruled in favor of the principal. Justice Byron Write wrote, "Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." The decision remains controversial, as it allows school officials to forbid articles associated with heated political issues; some say this means administrators can censor anything that would place the school or district in an unfavorable light [source: Hudson Jr.].

Since then, some states have passed laws to give greater free speech protection to school journalists and students.

2: Endorsing Candidates From the Pulpit

A church can lose its tax-exempt status if its pastor endorses a political candidate from the pulpit.
Nisian Hughes/Getty Images

Pastors and other religious officials are generally free to say what they wish to their congregants. And many do, speaking out forcefully on a host of potentially inflammatory topics, including politics, abortion, race and gay marriage. But there's a line that should not be crossed: endorsing political candidates.

Congress passed an amendment to the U.S. tax code back in 1954 that barred 501(c)(3) organizations — tax-exempt groups such as churches and charities — from any political campaign activity. And over the last few decades, it has slightly strengthened this prohibition. Most recently, in 1987, Congress clarified the language to specify that it also pertains to making statements opposing political candidates [source: Musselman].


Many churches routinely ignore this law, instructing their congregations on who to vote for (or not to vote for) in upcoming elections. And at times, the Internal Revenue Service has indicated it will challenge these churches, potentially removing their exempt status, though in practice it rarely has. Churches can get around this restriction if they wish. For example, a pastor can endorse a particular candidate by speaking at the candidate's headquarters as an individual, not in an official capacity as pastor of a certain church. And if one candidate is invited to speak during a service, all should be invited as well [source: Reilly].

1: Speaking Freely in Limited Public Forums (Like the State Fair)

This shot of the 2014 Minnesota State Fair shows how crowded it is. In 1981, the Supreme Court ruled that fairgrounds like this one are limited public forums and free speech can be regulated on their properties.
Saurabh Raj Sharan Photography/Getty Images

Americans have always been able to speak their minds in their own homes, and even outside of them by, say, erecting signs in their yards or passing out leaflets from their property. But as the young nation matured, the Supreme Court began placing limits on when people can heedlessly flap their gums. In Hague v. C.I.O. (1939), the Court ruled people can speak freely in government locales such as parks, sidewalks and the front steps of the state capital — sites that have long been used as public forums for such speech [source: McWhirter].

But since that ruling, the Court further stipulated in other cases that governments can control the time, place and manner of speech in public forums, but only for good reasons and with reasonable regulations. However, it also introduced the concept of "limited public forums," where free speech can be restricted.

The 1981 ruling on the topic was in regard to the Minnesota State Fair, which required any literature sold or distributed at the fair be done so from booths rented on a first-come, first-served basis. The International Society for Krishna Consciousness, objected; it wanted to sell its literature by walking through the fairgrounds. But the Court said the fairgrounds were not a public forum, but rather a limited public forum. (With 100,000 people coming through each day, traffic needed to be controlled somehow.) Thus, the fair could place some regulations on free speech [source: McWhirter].

Lots More Information

Author's Note: 10 Things That Aren't Free Speech

As a writer, freedom of speech, and certainly of the press, are cornerstones of my profession. Yet a lot of self-censorship goes on. A journalist friend, for example, is gay. He regularly covers religion, so is careful on social media and in other outlets not to mention anything about this in case it would hamper his ability to secure future interviews. Similarly, I rarely comment publicly on politics or religion because I also occasionally cover religious topics. And on a personal level, I find myself again keeping silent on various issues because some family members and friends work in often-charged professions as teaching, law enforcement and federal employment. I wonder if more self-censorship occurs in life than government-levied?

Related Articles

More Great Links

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