Are There Limits to My Free Speech Rights?

The First Amendment to the U.S. Constitution says that Congress shall make no law abridging the freedom of speech. Free speech is foundational in a liberal democracy, even if you don’t like what someone is saying. Still, free speech protections aren’t without limits.

Certain types of speech are not protected, including obscenity, fighting words, and defamation. It’s important to understand the limits on free speech and what you can do if someone censors you in violation of your constitutional rights. For legal advice about your free speech protections, talk to a civil rights lawyer.

Understanding the First Amendment and Free Speech

The First Amendment to the U.S. Constitution is part of the Bill of Rights and includes the freedoms of religion, speech, press, assembly, and petitioning the government.

One of the biggest misconceptions is that freedom of speech is absolute, says Lisa B. Shelkrot, a criminal defense attorney at Langrock Sperry & Wool in Burlington, Vermont, who has handled several civil rights cases. “The First Amendment and similar state laws prevent the government from restricting your freedom of expression. However, private restrictions on speech 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.”

Governmental Restrictions of Free Speech Rights

Even the government can place certain legal limitations on your exercise of free speech. For example, the government can enact time, place, and manner restrictions on protests or demonstrations. However, these restrictions must be narrowly tailored, content-neutral, and serve legitimate government interests. “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.

One of the most well-known examples of time, place, and manner limitations is yelling fire in a crowded theater. Prohibiting this type of speech serves a government interest in making sure people aren’t injured. It is content neutral and narrowly tailored to prevent panic.

“It’s a complicated area of the law, and people shouldn’t make too many assumptions,” says Shelkrot. “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.” 

Unprotected Speech and First Amendment Rights Exceptions

There are several categories of speech that are excluded from constitutional protections. Some restrictions and exceptions to free speech rights include:

• Defamation and false statements causing injury
• Fighting words
• Incitement to produce imminent lawless action
• Obscenity
• Child pornography
• True threats
• National secrets

Defamation and False Claims

Defamation involves making false statements that cause harm to someone’s reputation. Making false statements that cause someone reputational or financial harm is not protected speech. Defamation is a civil wrong and the victim can file a civil lawsuit for damages against defamatory written or spoken statements.

Fighting Words and Threats of Harm

Fighting words and breach of the peace exceptions to the First Amendment address issues of physical harm. “Words can really hurt people,” says Shannah Kurland, a civil rights attorney in Providence, Rhode Island. “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 U.S. Supreme Court case Chaplinsky v. New Hampshire. In this case, Walter Chaplinsky, a Jehovah’s Witness, had verbally attacked the town marshal, calling him a “God-damned racketeer.” Chaplinsky was arrested and convicted for violating a state law prohibiting offensive or derisive speech in public places. Upholding Chaplinsky’s conviction, the Supreme Court ruled that certain expressions likely to provoke immediate violence are not protected by the First Amendment.

A 1980 case from Rhode Island resulted in a different outcome, showing the contours of the fighting words exception. In State v. McKenna, police officers took three youths into custody for throwing rocks. A relative 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.”

In Brandenburg v. Ohio, the Supreme Court found the government could punish inflammatory speech directed to inciting or producing imminent lawless action. Similarly, inflammatory words that might cause someone to immediately retaliate or fight is not protected free speech.

Restrictions on Obscene Materials

Different people have differing opinions on what is obscene. Obscenity is not protected speech but it can depend on the individual situation. The Miller test (from the 1973 case Miller v. California) determines obscenity based on contemporary community standards. If the average person would find a work appeals to prurient interests, it is not a protected expression.

How Do You Know if a Statement Falls in an Unprotected Category of Speech?

“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. As an individual, I would challenge that,” Kurland says. That being said, hate speech by itself is generally not prohibited. But when it amounts to fighting words or true threats, it loses free speech protections. Thinking of white nationalist marches and protests in Charlottesville, Virginia, Kurland 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 posed 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 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 Political Speech Have Stronger Protections?

“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.

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 lawyer in your area who has experience in First Amendment advocacy and defense.