1st AMENDMENT RIGHTS

What Speech is Protected?

The First Amendment broadly protects the right of individuals to express themselves without government interference or regulation. This includes:

A. Political Speech

• Considered the core of First Amendment protections.
• Individuals can criticize government officials, policies, and laws without fear of punishment.
• Example: Protesting government actions or advocating for political change.
   

B. Symbolic Speech

• Non-verbal expression that conveys a message.
  Example: Burning the American flag as a political protest is protected (Texas v. Johnson, 1989).
   

C. Hate Speech

• Although offensive, hate speech is generally protected unless it directly incites violence or constitutes a true threat.
  The Court has repeatedly ruled that the government cannot prohibit speech simply because it is offensive.
   

D. Commercial Speech (limited protection)

• Speech done on behalf of a company or individual for the intent of making a profit.
• It is protected, but subject to regulation, especially to prevent misleading or false advertising (Central Hudson Gas & Electric Corp. v. Public Service Commission, 1980).
   

E. Speech in Public Forums

• Public parks, streets, and sidewalks are considered traditional public forums.
• The government can impose reasonable time, place, and manner restrictions, but not ban speech outright.

What Speech is Not Protected?

Despite its broad protections, the First Amendment does not protect all forms of speech. Categories of unprotected or limited speech include:

A. Incitement to Imminent Lawless Action

• Speech that encourages immediate illegal acts is not protected.
• Brandenburg v. Ohio (1969): The Court held that speech can only be prohibited if it is "directed to inciting or producing imminent lawless action" and is likely to do so.
   

B. True Threats

• Statements meant to communicate a serious expression of intent to commit violence. 
• Virginia v. Black (2003): Cross burning with the intent to intimidate can be a true threat and is not protected.
   

C. Obscenity

• Defined in Miller v. California (1973): Speech is obscene (and unprotected) if:

1. The average person, applying contemporary community standards, would find the work appeals to prurient interest;
2. The work depicts or describes sexual conduct in an offensive way;
3. The work lacks serious literary, artistic, political, or scientific value.
    

D. Defamation (Libel and Slander)

• False statements that damage a person's reputation are not protected. 
• Public figures must prove “actual malice” to win defamation suits (New York Times Co. v. Sullivan, 1964).
   

E. Fighting Words

• Speech that is likely to incite immediate violence or breach of the peace. 
• Chaplinsky v. New Hampshire (1942): “Fighting words” are not essential to the expression of ideas and are of such slight social value that any benefit is outweighed by public interest.
   

F. Child Pornography

• Categorically excluded from First Amendment protection.
• New York v. Ferber (1982): States can ban child pornography regardless of whether it meets the test for obscenity.

Modern Controversies and Challenges

A. Social Media and Free Speech

• The First Amendment restricts government censorship, not private companies like Facebook or Twitter.
• Debate continues over how much power platforms should have in regulating user content.
   

B. Campus Speech

• Conflicts between promoting diversity and inclusion vs. protecting open debate. 
• Courts generally side with students' rights to express unpopular opinions unless they disrupt school function.
   

C. Cancel Culture and Free Speech

• While “canceling” isn’t government censorship, the broader cultural impact raises questions about free discourse and the social consequences of speech.