Freedom of Expression

Free speech protection covers far more than talking. It includes writing, art, music, protest, donations to causes, and the choice not to speak at all. The core rule is that government cannot punish speech simply because officials or the public dislike the message, that is called viewpoint discrimination, and courts treat it as the most serious kind of censorship.

Government can still impose reasonable time, place, and manner rules that apply to everyone regardless of message: a permit for a large march, a noise limit at 2 a.m., a rule against blocking a fire lane.

A small number of narrow categories fall outside protection:

• Incitement: speech directed to producing immediate lawless action and likely to produce it.
• True threats: serious expressions of intent to commit violence against someone.
• Defamation: false statements of fact that damage reputation.
• Fraud, perjury, and criminal solicitation: using words to commit a separate crime.
• Obscenity and child sexual abuse material: defined narrowly by law.

Being offensive, rude, hateful, or wrong is generally not enough to lose protection. That is the part people most often get backwards.

Students at public schools keep First Amendment rights, but schools can restrict speech that would substantially disrupt school activities or invade the rights of others. Courts have also allowed schools to regulate lewd speech at school events and school-sponsored publications. Public colleges have less authority over adult students than K-12 schools do over minors, and private schools are not bound by the First Amendment at all, though many promise similar protections in their own policies.

Conduct meant to send a message can count as speech: armbands, marches, sit-ins, kneeling, wearing a shirt with a slogan. Government gets more room to regulate the conduct part when the rule is unrelated to suppressing the message, but when the whole point of a law is to punish the idea being expressed, courts strike it down.

Defamation requires a false statement of fact, shared with someone else, that harms reputation. Opinions, jokes, and obvious hyperbole are generally not defamatory because they cannot be proven true or false. Truth is a complete defense. Public officials and public figures must additionally prove actual malice.

A true threat is a serious expression of an intent to commit unlawful violence. Threats are unprotected whether they are shouted in person or typed into a group chat.