Civil Rights

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

By E.A. Gjelten, Author and Editor
The Supreme Court has carved out exceptions to First Amendment protections for speech that threatens someone with violence, incites listeners to take illegal action, or is harmful in certain other ways.

Americans care deeply about their free speech rights, but they may not always understand that those rights aren’t absolute. The U.S. Supreme Court has long said that government may restrict certain kinds of expression, especially those that are particularly dangerous or harmful.

True Threats

The First Amendment doesn’t give you the right to make a direct, “true threat” to kill your boss or shoot a judge. But what if you say to a large audience that someone should use their “Second Amendment rights” toward a political opponent? There isn’t a clear, consistent definition of a true threat, but it should be more than political hyperbole or metaphor (“we’re going to kill you at the polls”), a joke, or an impulsive angry comment (Watts v. United States, 394 U.S. 705 (1969)).

In contrast, a true threat is meant to communicate a serious intention to carry out immediate violence against someone. The Supreme Court has said it doesn’t matter if the people making the threat don’t actually plan to carry it out, because barring true threats protects the victims from the fear of violence as well as the actual violence. So intimidating actions like burning a cross can be true threats if they’re meant to make particular individuals or groups of people fear for their lives. (Virginia v. Black, 538 U.S. 343 (2003).)

It’s not always easy to draw the line between a true threat and a statement that’s simply alarming because of its violent and offensive language. People who make threats often claim afterwards that they were only joking, even if it didn’t seem that way to the listeners. Federal appellate courts have used different tests for deciphering the speakers’ intentions. So whether something you say is considered a true threat or free speech may depend on the courts where you live as well as the individual circumstances.

Fighting Words

Direct personal insults aren’t protected free speech if they’re so offensive that they’re likely to provoke the listener to resort to immediate violence (Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)). (For more on this exception and its limits, see our article on First Amendment protection for hate speech.)

Calls to Illegal Action

The First Amendment doesn’t protect statements that are meant to incite particular listeners to take immediate illegal action and are likely to have that effect. But people have a free speech right to advocate violence in general, even for abhorrent reasons—like when they allude to killing African Americans as a way to preserve white supremacy (Brandenburg v. Ohio, 395 U.S. 444 (1969)). The same is true when protestors declare—after police have cleared a demonstration—that they’ll take the street back later (Hess v. Indiana, 414 U.S. 105 (1973)).

Obscenity and Child Pornography

Pornography is protected free speech unless it fits within the Supreme Court’s strict definition of obscenity or it involves children. (For more details, see our article on the First Amendment and obscenity.)

Defamation

Defamation is a false statement about someone that hurts that person’s reputation, whether the lie is written (libel) or spoken (slander). Libel and slander aren’t crimes, but the victim can sue the person who did the defaming. However, free speech rights do come into play when the victim is a public figure like a politician, because that person has to prove there was “actual malice” behind the false statement. (For more details, see Nolo’s article on defamation law.)

A Few More Exceptions

Other types of speech that aren’t protected by the First Amendment include:

  • perjury (lying under oath)
  • plagiarism (copying other people’s writing, art, music, or choreography without their permission)
  • solicitation (convincing someone else to commit a crime), and
  • blackmail.

Questions for Your Lawyer

  • My former husband posted a rap video about killing his ex-wife. It’s a parody of the Eminem song, but my ex used my name and other details about me. Can I have him arrested for threatening me, or at least get a judge to make him take down the post?
  • When I was speaking at a public plaza, fights broke out because some people got mad about what I was saying. The police arrested me, saying the violence was my fault. Didn’t they violate my free speech rights?
  • I have a big following for my feminist blog and Twitter stream. I’ve gotten used to men posting violent and offensive things about me, but now someone has tweeted that it’s all men’s duty to rape me—and they’ve posted my work and home addresses. Can I get the police to do something?

Go to main FAQ page on the First Amendment and free speech.

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