Freedom of Speech Under the Constitution
One of the most important and contested constitutional rights is the right to free speech in the First Amendment. This prevents the government from imposing criminal penalties or civil sanctions on citizens based on what they say or write. While the constitutional text specifically prevents Congress from infringing on the freedom of speech and the press, the First Amendment applies to all types of government actors at federal, state, and local levels. On the other hand, it does not ban restraints on speech imposed by private entities. For example, a private employer can discipline its employees for their statements.
Regulations based on the content of speech are generally unconstitutional. For example, the government cannot prevent people from stating their views on public issues or criticizing the actions of public officials. This would undermine democracy by preventing citizens from getting access to a full spectrum of information and ideas. The Supreme Court has applied First Amendment protections generously. They may even cover hate speech, blasphemy, vulgar speech, and videogames that contain what might be seen as an offensive level of violence.
Exceptions to the Ban on Content-Based Restrictions
That said, the government has greater discretion to regulate certain narrowly defined types of speech. These include threats to commit a crime and "fighting words," which are insults delivered to the target’s face that are likely to cause a physical fight. "Fighting words" are generally limited to personal attacks and do not include statements that may be more generally offensive, such as political slogans, even if the audience is offended and responds with violence. Child pornography falls outside the First Amendment because it depicts real children engaging in sexual activities, which could encourage child sexual abuse. Pornography involving adults falls outside the First Amendment only if it is extremely explicit, such that it is considered obscene.
The First Amendment may not shield a speaker from a lawsuit for defamation, which involves a false statement that causes harm to the subject. In some cases, the speaker may face criminal penalties, although these are unusual. Public officials bringing defamation cases face a higher bar than private citizens in overcoming First Amendment barriers. They generally must prove that the statement was made with actual malice, which means that the speaker knew that the statement was false or acted with a reckless disregard for the truth.
Content-Neutral Restrictions
Regulations on speech that do not involve the content of the speech are more likely to withstand scrutiny under the First Amendment. These are often known as "time, place, and manner" restrictions. Content-neutral regulations might include municipal ordinances controlling the size and placement of signs on government property, or rules that limit the location and size of protests, the hours when they can be held, or the volume of sound-amplifying devices. The government gets the benefit of the doubt regarding these restrictions as long as they are reasonable, since they do not target a certain type of speaker or message. Thus, the government is not taking sides between viewpoints.
Content-neutral restrictions are most likely to be considered unreasonable if they completely ban a certain type of protected expression. For example, the First Amendment probably does not permit a blanket ban on all demonstrations in all public parks, or all distribution of leaflets on all public streets.
Restricted Settings
First Amendment protections apply less strictly in settings over which the government has greater control. These include public schools and government workplaces. Content-based restrictions may be appropriate in these settings to discipline speakers who fail to conform with the norms imposed by their status. The First Amendment does not prevent a government agency from requiring an employee to keep classified information confidential, for example, even though this is technically a content-based restriction on speech. Teachers can be disciplined for speech that encourages students to engage in illegal or inappropriate conduct.
