Last updated on: 6/2/2008 5:37:00 PM PST
What Is Free Speech?


General Reference (not clearly pro or con)
The First Amendment of the US Constitution states in part:

"Congress shall make no law... 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."

US Constitution


The Electronic Privacy Information Center (EPIC), a public interest research center, provided an article titled "Overview of Free Speech Protection" on its website, www.epic.org (accessed June 23, 2010), that stated:

"Although adopted as part of the Bill of Rights in 1791, most First Amendment doctrine is a result of twenty-century litigation. It wasn't until 1925, in Gitlow v. New York, that the [US] Supreme Court extended the First Amendment freedoms of speech and the press to the states through the Fourteenth Amendment due process clause. Ancillary rights - those integral to but not explicit within the First Amendment - were not doctrinally recognized until the 1960s, when the [US Supreme] Court decided cases determining the laws of libel and commercial speech, and establishing rights of privacy, access, and anonymity. The meaning of the First Amendment has continued to develop rapidly, in part because of changes in and the increasing importance of new technology.

Unlawful Restriction on Speech:
  • Vagueness. The Court has ruled unconstitutional laws that are so vaguely written that persons of average intelligence must guess at (and likely differ as to) its meaning and application...
  • Overbreadth. The Court has ruled unconstitutional laws that are so broadly written as to prohibit protected speech as well as unprotected speech...
  • Prior Restraint. Attempts to exercise prior restraints of speech or publication are almost always illegal, because such a restraint is an irreversible sanction on expression...
  • Content Regulation. Any regulation based on the content of expression is subject to strict scrutiny: the Court will permit the regulation of content of speech only so long as the regulation is narrowly tailored to further a compelling government interest, and there is no less restrictive alternative...
  • Compelled Speech. The government cannot compel an individual to speak a message...
Lawful Regulation on Speech:
  • Obscenity. Speech defined as obscenity is outside the boundaries of First Amendment protection.
  • Fighting Words. Speech likely to provoke an average listener to retaliation, and thereby cause a breach of peace, falls outside the protection of the First Amendment...
  • Commercial Speech....The government can ban deceptive or illegal commercial speech...
  • Incitement ('clear and present danger'). The government can regulate speech that is intended and likely to incite 'imminent lawless action,' or where the speech presents a 'clear and present danger' to the security of the nation.
  • Time Place and Manner. Content-neutral regulation of the time, place, or manner of speech that does not interfere with the message being delivered and leaves open adequate alternative channels of communication is permissible...
  • Libel/Slander. In New York Times Co. v. Sullivan, the [US] Supreme Court [held that]... the First Amendment requires public officials and public figures prove 'actual malice' (knowing or reckless disregard for the truth of the statement)... Private figures must prove that a statement is false, and that the speaker engaged in some degree of negligence (mere falsity of the statement is insufficient). Laws vary state to state."

May 5, 2006 - Electronic Privacy Infoamation Center (EPIC)