7 Things You Can’t Claim First Amendment Rights to Say

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

These 45 words make up the complete First Amendment to the U.S.  Constitution.  For many of us, they are the most important words ever strung into a complex sentence, because they’re the foundation for the unique American way of life.

Originally, First Amendment protections applied only to laws passed by the U.S. Congress, but since 1925 (Gitlow v. New York, 268 U.S. 652), they’ve applied to the rules set by government at any level — federal, state, and local.  The founders obviously intended that the First Amendment be a broad, sweeping statement of the rights they wanted to secure for themselves and their descendents.

But the First Amendment can’t protect Internet and social media users who forget that the free speech guarantee isn’t a free pass to say whatever you want without facing consequences.  That’s because while the First Amendment protects some kinds of speech (that is, you can say or do it), there’s no requirement that other people (such as employers, fraternal organizations, or schools) have to associate with you once you do.  And the First Amendment does not protect all kinds of speech.

The First Amendment Does NOT Protect: 

  1. Hate speech.  OK, it protects it sometimes — and sometimes it doesn’t.  For example, the Supreme Court ruled that  Westboro Baptist Church’s hateful protests at military funerals are legal — while most “fighting words” are not.  A Jehovah’s Witness  went to prison for calling a police officer a “God damned racketeer”, a teenager was jailed for burning a cross, and Hustler paid damages to a preacher over a parody labelled as such in the magazine.  
  2. Speech that incites violence or encourages the audience to commit illegal or dangerous acts.  This is another gray area.  A radio station tried to claim First Amendment protection when two cars chasing a station car carrying prizes forced a third car off the road, killing the driver.  But the courts said that reckless driving was the foreseeable result of the station’s broadcasts.  In another case, chat room conversations that encouraged suicide were also denied First Amendment protection.
  3. Material support to domestic or foreign terrorist groups, even if that “support” intends to offer peaceful alternatives to conflict through humanitarian aid. 
  4. Public speech made in the conduct of their duties by public employees.  Richard Ceballos was a LA County Sheriff’s Deputy whose grievance went all the way to the U.S. Supreme Court to clarify a key point that many social media users should know by heart:  the law distinguishes between what an employee says as a private citizen, and statements made as part of the person’s job responsibilities.  Your employer, however, does NOT have to make any such distinction.  In many states, you can get fired for making statements as a private citizen that your employer finds objectionable.  Some regulations (such as FINRA, HIPAA, FERPA, and SEC rules for insurance, financial services, health care, education, and brokers) make no distinction between what a person says as a private citizen and what they say as part of their job.  So this is an area that each social media user should understand as it relates to their own profession.
  5. Slander, libel or defamation There are many, many nuances here — and the rules are different depending on whether or not the injured person is a public or private figure.  Context matters, too, and so does whether the words used are an opinion (usually, but not always, protected) or factual statement (not protected unless the facts are provably true — and proving the truth is often far more costly and difficult than you might think).
  6. Publishing confidential, trade secret, or copyright material.  I’m not going to even attempt to discuss this in any detail, because the rules are just too complex.  But remember that non-disclosure agreements, employee policy agreements, and contracts apply online and off.  Yes, there are whistleblower statues in some states that will protect an employee who goes public with otherwise protected information because of a threat to public health or illegal activity.  But there is no absolute protection for whistleblowers — and it doesn’t exist everywhere.
  7. True threats Like many other areas of First Amendment protection, context, target, and intent matter in determining what is or is not a true threat. Some threats are always illegal — any threat to the President of the U.S., for example. Check out Stanford University’s The Nuremberg Files for a detailed account of the case in which over 200 doctors sued a website which published “Wanted: Dead or Alive” posters with the photos and home addresses of doctors who performed abortions, with details about the doctor’s families (such as the school their children attended, where their spouses worked, and what kinds of cars they drove).  The doctors said that the wanted posters constituted a true threat — and two murders were attributed to the campaign.  (One doctor murdered at church, another at home.) In this case, the Supreme Court ruled that the First Amendment protected the website and its wanted posters.  In other cases, felony and anti-terrorism charges have resulted from less direct threats.  

Justice Oliver Wendell Holmes wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Other areas that are not protected include solicitation, child pornography,  and obscenity.

Last, but not least, a corporation or someone acting on behalf of a corporation, and members of certain professions, may not violate the rules and regulations that apply to corporate advertising, sales literature, public appearances, or offers.  The rights discussed in this article generally apply to individual American citizens, not corporate entities.

Note:  For more on the subject of free speech and employment, check a recent blog post titled Exercise Your Free Speech Rights — or Keep Your Job?

# # #

Disclaimer:  I am not an attorney.  Nothing in this posting or any other section of this blog purports to provide legal advice.  Always consult competent legal counsel before making decisions about your actions and conduct.

About debmcalister

I'm a Dallas-based marketing consultant and writer, who specializes in helping start-up technology companies grow. I write (books, articles, and blogs) about marketing, technology, and social media. This blog is about all of those -- and the funny ways in which they interesect with everyday life. It's also the place where I publish general articles on topics that interest me -- including commentary about the acting and film communities, since I have both a son and grandson who are performers.
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26 Responses to 7 Things You Can’t Claim First Amendment Rights to Say

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  4. Horacio Alger says:

    No Law means no law. Period. If someone wishes to say that they will gouge your eyes out, then the act of saying it is not a crime, while attempting to actually gouge someone’s eyes would be assault or aggravated assault.

    We get on a very slippery slope when we get into trying to determine where the slope beginsl

    A former Supreme Court justice (Oliver Wendell Holmes) started this nonsense with his ruling that “no one has a right to cry ‘fire’ in a crowded theater.” What exactly one should do when they DID smell smoke in such a crowded theater is left undefined.

    • Jim Morris says:

      Why don’t you put in Holmes’ actual quote? Maybe because it doesn’t support your argument?
      Here is what he actually said: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic…”.
      Note the word “falsely”.

      • SE says:

        “Congress shall make no law…abridging the freedom of speech…”; are we trying to add “unless Oliver Wendell Holmes says otherwise”? In the “fire” example there is nothing to prevent anyone injured from filing a civil claim for damages providing that the person knowingly initiated a false fire alarm. The speech itself isn’t prohibited but a court can still determine what the consequences may be…

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  7. Hate speech is a poor example. First, you admit that the First Amendment “protects it sometimes.” Second, your examples for when it doesn’t are either wrong or fall into the category of “fighting words,” which is not the same as hate speech (although not mutually exclusive). The Jehovah’s Witness example was held to be fighting words and, in later decisions—Gooding v. Wilson (1972) and Lewis v. New Orleans (1974)—the Court invalidated convictions of individuals who cursed police officers. The conviction for cross burning and the damages paid by Hustler were both overturned by the Supreme Court as violations of the First Amendment, so those examples of speech are in fact protected.

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  9. Dan says:

    I still think 1-6 violates free speech. 7 only if they don’t seem like they’re joking (and if they don’t, they didn’t admit they were joking either is asked if they were serious). The fact is, the government has limited most of our amendments unconstitutionally (of course they wont admit that thought).

    • debmcalister says:

      Hi, Dan —

      The constitutional protection on free speech has never been absolute. Over the 215 years since the Bill of Rights was ratified, a number of exceptions have been codified into U.S. law.

      Whether you agree with the exceptions or not, U.S. courts have decided that they are valid.

      Thanks for reading the post and for taking time to comment!

      Regards, Deb

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  14. nina says:

    It doesn’t effect all speech? Then why call it freedom of speech?

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  17. Dan's stuff says:

    This goes to show that the first amendment is a myth.

    Its too bad that almost any “unpleasant” speech could be criminalized.

    • debmcalister says:

      I’m surprised you felt that way, Dan. I came away feeling as if there are still more things you can say than things you can’t! Regards, Deb

      • SE says:

        Thank goodness they still “allow us” to say lots of stuff! I look forward to the day when we get to ask permission before speaking…that way we will know our overseers approve of our behavior beforehand. Safe!

  18. Fred says:

    Happy Birthday, Deb!

    • debmcalister says:

      Thanks! I decided to write about the limitations of the First Amendment on my birthday because I think it’s such an important topic. The older I get, the more important it is to me to “preserve and defend” our First Amendment rights. Back in the 1980’s, the American Society of Journalists and Authors printed T-shirts that had the words “ASJA” on the front, and the 45 words of the First Amendment on the back. I went to vote early at a local church, and the election judge told me I couldn’t come into the polling place wearing a “political” T-shirt. And that’s when I got interested in the subject, and it’s been a passion for me ever since.

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