We often hear people say “I have free speech!” But what does that really mean? And how is it different from the First Amendment?
Free speech and the First Amendment are closely related but not exactly the same.
- Free speech is a value: something we believe in and try to live by.
- The First Amendment grants constitutional rights: these rights allow for enforcement of free speech, but only in certain situations.
Free speech is the idea that everyone should be able to share their thoughts, beliefs, and opinions without fear of being punished just for speaking up or associating with one another. It’s about open communication, learning from each other, and allowing ideas (even unpopular or hurtful ones) to be heard.
The First Amendment has the power of law. It is part of the U.S. Constitution and says the government cannot make laws that stop people from speaking freely, practicing their religion, or gathering peacefully. In other words, the First Amendment limits what the government can do to restrict your speech. The First Amendment protects citizens, residents, and visitors to the U.S. from government overreach. Understanding the First Amendment is important because it tells you what the government can and cannot do, and lets you know when censorship is unconstitutional.
Not all censorship is unconstitutional. Speech and other forms of expression censored by private, non-governmental agencies, such as schools, websites, or private employers, can still interfere with your free speech without infringing on your First Amendment rights. For example, if you post something rude online and your favorite social media app deletes it, that’s not a violation of the First Amendment because social media companies aren’t the government. They make their own rules, and have First Amendment rights of their own.
The distinction between constitutionally-protected Freedom of Speech and general free speech matters now more than ever, as public confusion about censorship vs. First Amendment rights is rampant, and many cases involving the First Amendment are reaching the Supreme Court.
Are the First Amendment and “free speech” the same thing?
No, “free speech” and “the First Amendment” are often used interchangeably, but they are not the same thing.
The First Amendment is a legal limit on government action created by the U.S. Constitution. The First Amendment protects people and/or private organizations from being censored by the government.1 This means the government (federal, state, or local) cannot:
- Block people from peacefully protesting
- Punish membership in groups because of their beliefs
- Retaliate against journalists for recording and reporting news
- Stop anyone from critiquing or protesting against the government
- Deny press passes to certain journalists based on their viewpoints
- Punish or discriminate against people for their religious beliefs
This only applies to the government’s power and does not apply to private entities like businesses, schools, employers, or social media platforms. In America, these groups are legally allowed to decide what type of speech is allowed or banned in their organization.
“Free speech,” by contrast, is a broader principle. International human rights frameworks recognize freedom of expression as a universal human right.2 This larger concept calls for the protection of speech beyond what the U.S. Constitution guarantees, including expression suppressed by corporate policies, financial institutions, or cultural stigma.
Is the First Amendment absolute?
No, the First Amendment provides strong but not unlimited protection. The Supreme Court has identified narrow categories of unprotected speech, including incitement to imminent violence, true threats, obscenity, and child sexual abuse material (CSAM).
In Brandenburg v. Ohio, the Court ruled that speech advocating violence is protected unless it is intended and likely to produce criminal action in the near future.3 In New York v. Ferber, the Court held that child sexual abuse material can be categorically banned, recognizing its unique harms.4
Censors exploit this myth by trying to expand the list of unprotected categories. Attempts to classify pornography, LGBTQ+ expression, sexual health information, or drag performance as “obscenity” are examples. Historically, the Court has resisted such expansions, striking down overly broad definitions in Ashcroft v. Free Speech Coalition5 and Reno v. ACLU.6
Expanding the list of unprotected categories could cause entire communities to lose constitutional protection for their speech, based solely on who those in power deem dangerous. Morality-based calls for censorship rely on persuading the public, and the court, that certain types of expression simply “don’t count” as speech. This inevitably impacts all communities, even those not currently at risk for being censored, because it becomes much easier to silence others once courts have set a precedent for doing so.
References
1. United States Constitution
2. Universal Declaration of Human Rights. Universal-declaration-of-human-rights
3. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). https://supreme.justia.com/cases/federal/us/395/444/
4. New York v. Ferber, 458 U.S. 747, 764–65 (1982). https://supreme.justia.com/cases/federal/us/458/747/
5. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 251–56 (2002).https://supreme.justia.com/cases/federal/us/535/234/
6. Reno v. ACLU, 521 U.S. 844 (1997) https://supreme.justia.com/cases/federal/us/521/844/
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