Criminal Law

The First Amendment and Free Speech Rights: FAQs

Answers to frequently asked questions about the constitutional right to freedom of expression and its limits—including how free speech rights apply to social media, students, immigrants, public employees, and military service members.
By E.A. Gjelten, Author and Editor
Updated: Jan 21st, 2021

Americans care deeply about their constitutional rights, especially the right to speak their minds freely, guaranteed under the First Amendment. But there are many misconceptions and questions about free speech rights—including whether those constitutional protections apply to decisions by social media sites to take down content (or ban users entirely) based on what they were posting.

This article explores some of the most common questions about the application, limits, and consequences of the First Amendment’s free-speech protections.

What Does the First Amendment Mean by “Speech?”

As humans, we have many different ways of expressing our thoughts, opinions, and beliefs. While the text of the First Amendment refers to “freedom of speech,” courts have recognized that this right includes many different kinds of expression, including:

  • spoken and written words, including social media posts and comments
  • theater, dance, visual art, movies, TV shows, videos, and video games
  • actions that convey a message (known as “symbolic speech”) like burning a flag
  • clothes that express an opinion or demonstrate faith, from T-shirts with slogans to religious headscarves
  • signing a petition, and
  • money, in the form independent spending related to political campaigns (Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)).

As technology changes, more ways of expressing ideas or opinions come under the “speech” umbrella. For instance, some courts have found that the protected speech includes:

  • computer code, to the extent that it conveys information to human beings who understand it
  • “liking” someone else’s social media page, post, or comment; and
  • Google search results.

The First Amendment also protects the right not to speak (often referred to as a protection from “compelled speech”). In classic examples from U.S. Supreme Court opinions, this means that students may stay silent during the pledge of allegiance (West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)), and drivers may refuse to display a state’s “Live Free or Die” motto on their license plates (Wooley v. Maynard, 430 U.S. 705 (1977).)

Does the First Amendment Prohibit Speech Restrictions by Private Companies Like Social Media Providers?

Originally, the language in the First Amendment (“Congress shall make no law ... abridging freedom of speech”) applied only to the federal government. But as a result of several U.S. Supreme Court decisions in the early 20th century, the First Amendment now applies to actions by federal, state, and local government to outlaw speech (“prior restraint” in legalese) or to punish people after they’ve already expressed their views. Because that includes government agencies and officials, it might be a violation of free speech rights when a police department or elected official bans users from social media accounts for their opinions. (Learn more about when government officials may block critics from social media.)

As a general rule, however, private businesses, organizations, and individuals are free to limit speech however they wish, as long as they aren’t violating contracts or other laws (including federal antidiscrimination laws or state laws protecting political activity by employees). For example, it’s usually not considered a violation of the First Amendment if:

  • a private employer fires a worker for expressing political opinions the boss doesn’t like
  • a private religious school disciplines a student for wearing a T-shirt with a pro-LGBT message
  • a private media company won’t publish content that doesn’t align with the owner’s political views
  • a web hosting company refuses to host a platform that embraces white supremacy or allows calls to violence and insurrection, or
  • a social media company enforces its policies on acceptable content by taking down posts or suspending users’ accounts.

Can Big Tech Companies Be Treated Like State Actors When They Restrict Free Speech?

As big tech has become more and more powerful, some commentators have called for the largest tech companies to be treated like government for purposes of the First Amendment, thus limiting their ability to restrain social media users' speech. We heard more of these calls in the wake of actions by Twitter, Facebook, Snapchat and other providers to suspend or permanently ban Donald Trump’s social media accounts, based on fears that he would incite further violence following the insurrection at the Capitol on January 6, 2021.

Using the analogy of a company town, where a private corporation acts like government, these critics point to big tech’s control over the public conversation. This “state actor” argument is based on a number of U.S. Supreme Court decisions holding that constitutional protections against government actions apply when private companies exercise “powers traditionally exclusively reserved to the State” (Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1975)).

So far, however, courts have found that the First Amendment does not prohibit social media providers from taking down users’ posts. Although the Supreme Court has characterized social media as “the modern public square” (Packingham v. North Carolina, 137 S. Ct. 1730 (2017)), it hasn’t directly addressed this question yet.

Does the First Amendment and Federal Law Protect Actions by Social Media?

Free speech arguments cut two ways. While some people complain that social media companies violate their constitutional rights by taking down posts or suspending their accounts, the companies argue that it would violate their own free speech rights if the government tried to regulate their decisions about what to publish on their sites. Not only that, but part of a federal law known as “Section 230” (47 U.S.C. § 230) protects social media providers from civil lawsuits for their good-faith actions to restrict access to objectionable content. (Another part of the law gives them immunity for content that users post on their platforms.)

Debates will continue over big tech’s ability to control online speech. Under current law, however, social media companies are free to apply their private moderation policies to restrict users’ access or ability to post content on their platforms.

What Kind of Speech Isn’t Protected Under the First Amendment?

As with all constitutional rights, there are limits to freedom of expression. Over the years, the U.S. Supreme Court has carved out a few exceptions to First Amendment protections, including speech that is intended to incite the listeners to take immediate illegal action, threatens someone with immediate violence, or meets the strict legal definition of obscenity. But the Court hasn’t recognized a general exception for hate speech. (Learn more about the exceptions to free speech protections and how the First Amendment applies to hate speech.)

Balancing Freedom of Expression With Other Constitutional Rights

Sometimes, free-speech rights compete with other constitutional rights—which can require a balancing act to make sure the different rights involved are protected as much as possible. For instance, judges may issue gag orders in order to control publicity during trials and protect the constitutional right to a fair trial with an impartial jury. But these orders shouldn't be so broad that they unnecessarily limit free-speech rights.

Do Some People Have Limited Free Speech Rights?

Not all U.S. residents enjoy the same level of constitutional protection when they speak their minds. For different reasons, the Supreme Court has given government more authority than usual to restrict speech by public school students, public employees, and prisoners. Also, while legal immigrants have the same basic right to freedom of expression as citizens, some people who aren’t legal permanent residents—including undocumented immigrants and temporary visa holders—may face certain limits on their freedom of expression. (Learn more about immigrants’ free speech rights.)

K-12 Public School Students

As the Supreme Court has said, public school students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)). But the Court also recognized that First Amendment rights for children in public K-12 schools may be more limited than for adults in other settings, because schools have an obligation to keep students safe and provide a good learning environment. (Learn more about freedom of expression for students.)

Members of the U.S. Military

People don’t lose all of their First Amendment rights when they join the military. But when courts look at whether military rules violate those rights, they generally apply different standards than they would in civilian contexts. As the U.S. Supreme Court has reasoned, “the military is, by necessity, a specialized society separate from civilian society,” with special disciplinary needs (Parker v. Levy, 417 U.S. 733 (1974)). So, for instance, courts have upheld military discipline against service members for speech that advocates disloyalty to the United States or expressive conduct that is disrespectful to the flag—both of which would generally be protected under the First Amendment for civilians.

Public Employees

Similarly, civilian employees don’t give up all of their free speech rights just because they work for the government. Still, public employers may discipline or fire employees for what they say, write, or post online in certain circumstances. The Supreme Court has set out guidelines for deciding when government employees have the right to speak their minds without interference from their bosses, depending on the context and content of their communications.

  • On-duty communications. The First Amendment doesn’t protect anything employees say or write as part of their job. This is true even when they’re communicating about important issues like government misconduct. (Garcetti v. Ceballos, 547 U.S. 410 (2006).) However, even when public employees are talking about information they learned at work, the Garcetti rule won’t apply if their communications aren’t within the scope of their official duties. Some states have laws protecting whistleblowers, but their safeguards vary.
  • Off-duty speech on public issues. The First Amendment might protect public employees when they speak out as private citizens about matters that would concern the general population—such as corruption, inefficiency, mismanagement, or discriminatory policies at governmental agencies. In a situation like this, courts will balance the employee’s free speech rights against the employer’s need to carry out its public service efficiently and without disruption. In practice, however, courts generally defer to the public employers’ judgment. As a result, public employees are often disciplined or fired for off-duty posts on their private social media accounts that shed a bad light on the agencies they work for.
  • Public employees’ private gripes. Government employees generally don’t have a constitutional right to air their private grievances with their employers, particularly when their speech undermines office relationships and the boss’s authority.

Prisoners

Prisoners have the right to express their political views, but prison and jail administrators have a lot of leeway to restrict how and when inmates can express themselves and what they can read. Those restrictions must be related to “neutral” goals like security rather than an attempt to censor certain viewpoints. For instance, prisons can censor incoming mail, limit and monitor phone calls, and prevent prisoners from books that are dangerous or pornographic.

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