The First Amendment bars laws "abridging the freedom of speech." Through incorporation it limits every level of government. But the Court has never read it as protecting all speech in every setting. Three cases show how the line has moved.
| Case | Facts | Holding |
|---|---|---|
| Schenck v. United States (1919), 9–0 | Leaflets urged men to resist the World War I draft. | Conviction upheld: speech creating a "clear and present danger" of harms Congress may prevent can be punished. |
| Tinker v. Des Moines (1969), 7–2 | Students wore black armbands to protest the Vietnam War. | Protected: students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," unless the speech would substantially disrupt school. |
| Brandenburg v. Ohio (1969), 8–0 | A Ku Klux Klan leader spoke at a rally. | Advocacy is protected unless it is directed to inciting imminent lawless action and likely to produce it. This replaced the clear-and-present-danger test. |
Why it works
Why protect speech people hate? The idea is that government should not decide which opinions may be heard; the answer to bad speech is more speech, and today's unpopular view (abolition, suffrage, civil rights) may become tomorrow's common sense. Speech can include symbols and actions, such as armbands or flag burning (Texas v. Johnson, 1989). Still, some categories get little or no protection: incitement to imminent lawless action, true threats, obscenity, and defamation. Rules on the time, place and manner of speech (no loudspeakers at 3 a.m.) are allowed if they are neutral about the message.
Key idea
Speech is broadly protected but not unlimited: Schenck (1919) used "clear and present danger," Tinker (1969) protected students' armbands, and Brandenburg (1969) protects advocacy unless it aims at and is likely to produce imminent lawless action. The First Amendment limits government, not private parties.
Worked example: Apply Brandenburg
At a rally, a speaker says that someday the government should be overthrown. No one acts. Can the state punish the speech?
- Brandenburg asks: was it directed to inciting imminent lawless action, and likely to produce it?
- "Someday" is not imminent, and no action was likely.
Answer: No; it is protected advocacy.
Worked example: Government or private?
A private company fires a worker for a post criticizing the company. Did the company violate the First Amendment?
- The First Amendment limits government action.
- A private employer is not the government (other laws may protect some workers).
Answer: No; the First Amendment does not bind private employers.
Common mistake
Thinking the First Amendment stops private companies, websites or employers from limiting speech. It restrains government. Check: who is limiting the speech? If it is a public school, a city or Congress, the First Amendment applies; if it is a private business, generally it does not.