Freedom of Speech and the First Amendment

Almost everyone knows that the First Amendment guarantees our freedom of speech.   Not everyone, however, knows what “freedom of speech” really means.

On its face, the amendment’s language seems clear: “Congress shall make no law … abridging the freedom of speech, or of the press.”

“No law” is pretty straightforward.   But if you think about it for a minute, there are dozens, if not hundreds, of laws that “abridge” speech.   Laws against blackmail or criminal threats, laws against false advertising, laws against obscenity and child pornography, laws regulating signs and billboards, laws prohibiting various kinds of libel and slander – they all restrict our speech to a greater or lesser degree.

Determining which of these laws violate the First Amendment and which do not can be a subtle and complex task.   Speech is varied and multi-faceted; this is not an area of the law where you can have black-and-white rules that govern every case.   So over the years, courts have developed several different methods of approaching First Amendment issues.

For example, there are some narrowly defined categories of speech – obscenity, criminal threats, “fighting words” – that are outside the First Amendment’s protection.   In those cases, a court will simply decide whether the speech falls into one of the prohibited categories. If it does, the state can regulate it.

In other cases, however, a court might balance the value of the speech against the state’s reason for wanting to regulate it – the value of a political demonstration, for example, against the potential for disruption or damage.   Such cases can pose extraordinarily difficult problems of freedom, justice and public policy.

In the coming months I will be discussing some of those problems, as well as the values served by the First Amendment and the reasons the government might advance for regulating or prohibiting different types of speech.   I hope you will read (and enjoy) what I have to say.

In the meantime however, if you have questions about your First Amendment rights, or about any of your civil rights, please do not hesitate to contact us.

Next Article , “Why We Have A First Amendment”