Freedom of Speech is a founding constitutional principal. As Americans, we have the legal right to express any opinions freely, without censorship or restraint.
- Right not to Speak
- Right to Engage in Symbolic Speech (like wearing arm bands)
- Right to Free Expression (includes art and written speech)
- Right to Free Association (taking part in protests & rallies, forming clubs & organizations)
- Even the right to use certain offensive words and phrases to convey political messages (Cohen v. California)
Time, Place & Manner Restrictions
While the First Amendment prohibits restrictions on free speech, the government and police can apply “time, place and manner” limitations when reasonably justified. These limitations can include some rules about where you can protest and how loud or disruptive you can be.
The above time, place and manner limitations must be applied evenly over all content, even if it’s controversial. The government can’t discriminate against individuals or group because of their message. An example of this discriminatory enforcement could be if the City denied you a special event permit, but you can show a similar event (like a parade) had been permitted at the around the same time in the same venue.
Sidewalks, streets, parks, plazas and other public forums are for the most part allow unrestricted public speech.
Speech can’t be restricted on your own property, or any private property (if you have the consent of the property owner).
The general rule is that the owners of private property can set rules for speech on that property. If you disobey the property owner’s rules, they can order you off their property (and have you arrested for trespassing if you do not comply). But your speech may not be restricted if it is taking place on your own property or with the consent of the property owner.
The First Amendment doesn’t protect speech used to commit a crime, such as extortion (blackmail) or perjury (lying under oath). Nor does it protect:
1. Threats & Intimidation
Credible threats targeting bodily harm or death
2. Fighting Words
Inciting others to commit violence or other illegal actions that would harm others. Typically, it must be directed at an individual and not a broader group.
False statements of fact that “exposes a person to hatred, ridicule or contempt” or otherwise damages someone’s reputation or employment standing. When it’s spoken, it’s slander, when it’s written, it’s libel.
Substantial truth is an absolute defense to defamation, and the statements have to be proved false. Public Officials also must prove that the speaker (or writer) knew the statement was false, or acted in “reckless disregard” to truth in making it.
Of Private Individuals Speech that demeans, offends or otherwise results in a hostile or emotionally distressing environment. Harassment can include derogatory comments, internet trolling and visual insults (like graphic depictions or cartoons).
Of Public Officials The above standards don’t apply to criticism of public officials. This speech is considered so essential to public participation and to governmental reforms, it’s protected even when the speech is strongly-worded, vigorous, or distasteful. It also includes satirical cartoons and parodies that used to expose issues and vices.
5. Intimidation & Threats
Intentionally trying to coerce someone to do (or not do) something by directly or indirectly threatening to:
- Harm them or their property
- Expose them to hatred, contempt or ridicule
- Accuse them of an offense
- Bring about or continue a strike, boycott or other collective action
Intimidation by Public Officials: The above extends to public officials who threaten to take or withhold action within their official capacities if you do (or don’t do something).
6. Obscenity (in some cases)
In general, obscenity is protected speech unless it 1) depicts something patently offensive based on community standards; 2) while also lacking serious literary, scientific or artistic value.
Emails can be considered obscene if they include lewd or other intentionally offensive language or images.