Are There Limits to My Free Speech Rights?
Yes, but deciding what’s unprotected speech is a contested gray areaBy Trevor Kupfer | Reviewed by Canaan Suitt, J.D. | Last updated on November 14, 2023 Featuring practical insights from contributing attorney Lisa B. Shelkrot
Use these links to jump to different sections:
- Are First Amendment Rights Absolute?
- What Is Unprotected Speech?
- How Do You Know if a Statement Falls in an Unprotected Category of Speech?
- Does My Political Speech Have Stronger Protections?
- Find an Experienced Civil Rights Lawyer
In the fall of 2015, 21-year-old William Schenk was distributing Ku Klux Klan recruitment fliers at homes in Burlington, Vermont—including the homes of two minority women. Local police arrested and charged Schenk with disorderly conduct, to which he worked out a plea deal the following spring.
Ruling it a hate crime and alleging that Schenk targeted the women, the judge sentenced him to 240 days in prison. The case was appealed to the state supreme court in March 2017. The defense’s argument was simple: The distribution of KKK fliers is protected speech under the First Amendment. In May 2018, the Vermont Supreme Court, by a 3-2 decision, agreed and overturned Schenk’s conviction.
With the recent rise of protests, marches, and rallies also come increased questions about the First Amendment to the U.S. Constitution. The line between what is and isn’t protected speech is anything but clear.
“It’s a complicated area of the law, and people shouldn’t make too many assumptions,” says Lisa B. Shelkrot, a criminal defense attorney at Langrock Sperry & Wool in Burlington who has handled several civil rights cases. “It can be very fact-specific and very dependent on intricacies. So if you have concerns, get in touch with a lawyer—if possible, as early as you can so you can determine where you stand.”
Are First Amendment Rights Absolute?
One of the biggest misconceptions is that freedom of speech is absolute, Shelkrot says. “The First Amendment and similar state laws prevent the government from restricting your freedom of expression. Private restrictions are not constitutionally protected, so when people say, ‘It’s a free country, I can say what I want,’ it doesn’t apply to your school, your employer, or your landlord, for example.”
Even when your message has First Amendment protection, there may be a legitimate government interest in restricting the time, place, and manner in which you deliver it. “You can hold up a banner criticizing the government, but you can’t necessarily do it in the middle of Main Street during rush hour,” Shelkrot notes of
Blocking traffic or screaming in a megaphone in the middle of the night will likely get you ticketed—at the very least. And while some may consider shopping malls modern-day public squares, such private real estate developments might ask police officers to escort you out.
What Is Unprotected Speech?
There are other types of speech restrictions that try to address issues of physical harm. “Words can really hurt people,” says Shannah Kurland, a civil rights attorney in Providence. “Sticks and stones may break your bones, but words can also hurt us. So it’s not as simple as ‘free speech means you can say whatever you want.’”
Kurland, who primarily handles police misconduct and criminal defense cases, cites the 1942 case of Chaplinsky v. New Hampshire, which helped establish a common exception to the First Amendment after a verbal attack of a town marshal.
A more modern example is State v. McKenna, where police took three youths into custody for throwing rocks, and the sister of one of the offenders used profanity toward the officers. “One of the things she said was that she was going to ‘blow their fucking heads off,’” Kurland says. “They arrested her and charged her with disorderly conduct, but the Rhode Island Supreme Court said it wasn’t fighting words because it wasn’t a specific threat to an individual—it was a generic statement to all of them.”
How Do You Know if a Statement Falls in an Unprotected Category of Speech?
These kinds of gray areas are the defining characteristic of unprotected speech. Kurland thinks of white nationalist marches and protests like in Charlottesville, Virginia. “Taking off my lawyer hat and speaking as a person who’s part of a social justice movement, I don’t want Nazis saying ugly, racist things in my community. So, as an individual, I would challenge that,” she says.
Such events often result in arrests for disorderly conduct, and the question later becomes: Did the message from one or multiple sides invoke violence?
Kurland once had to pose the question to herself when she was arrested for citing case law as police illegally ordered homeless residents to move. “I was arrested for blocking a 16-foot wide sidewalk,” Kurland says with a laugh, “and it included the section of disorderly conduct that involved fighting words—as if paraphrasing a Supreme Court opinion could be considered that.” A judge ultimately issued a not-guilty filing in Kurland’s case.
As with most gray areas of the law, it all depends on the facts involved. “What was the level of aggression? Was there a specific threat? Was there any physical activity? Assault doesn’t necessarily mean physical contact; you’re putting them in imminent fear if you come at them in some form, along with your words,” Kurland says.
Does My Political Speech Have Stronger Protections?
The gray area largely depends on how the speech is interpreted, but “a good guideline is that the closer something is to political speech, the greater the protections,” Shelkrot says. “[Then] there are categories that are generally unprotected: speech that is overtly physically threatening, extortion, fraud—crimes where the speech itself is the crime,” she adds, citing things like defamation and obscenity.
There is likewise a gray area in politics, as some political beliefs can intersect with restricted speech. “There have been, over the last few decades, a number of jurisdictions passing laws that punish crimes more severely when they are motivated by racism or other discrimination—what we call hate crime,” Shelkrot says. “Interestingly, they have mostly been upheld in constitutional challenges. It’s not settled law, though, and might be subject to more litigation. Viewpoint discrimination is pretty carefully scrutinized.”
And that scrutiny isn’t showing any signs of slowing, in Kurland’s opinion. “I think folks are more vigilant now. The violence and hate that’s always been there is more in your face now, so the vigilance is a response to that.”
Find an Experienced Civil Rights Lawyer
For legal help defending your constitutional right to free speech, visit the Super Lawyers directory to find a civil rights attorney in your area who has experience in First Amendment advocacy and defense. For additional information on this area of law, see our civil rights overview.
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