All The Things That Are And Aren't Protected By The First Amendment
Though it was ratified in 1791, the First Amendment feels more relevant than ever. Debates go back and forth about what freedom of speech covers and what demonstrators have the right to say about civil rights issues.
At its core, the First Amendment protects American citizens from government punishment because of the opinions they express. Some people question how far free speech protection goes. Are people really allowed to get together in the name of what most would deem hate? The answer is: sort of. For example, it isn't illegal to express bigoted views or to speak out against the government, and Americans are free to wear Nazi armbands and use racial slurs.
There are some freedom of speech limitations, though, and it's important to know the ins and outs of what the First Amendment protects.
- Photo: David Lee / Wikimedia Commons / CC BY-SA 2.0
Obscenity: Mostly Protected
You can be pretty obscene and still be protected under the First Amendment, but it's possible to go too far. There's a "high threshold set" of obscene language to which the First Amendment does not apply.
According to HG.org, sexualized language loses its protection if it lasciviously depicts something undeniably offensive. In this context, courts gauge offense "based on contemporary community standards" and a lack of scientific or artistic value.
Calls For Boycotts Or Social Ostracism: Protected
If you've ever publicly called for others to boycott a business or claimed a certain celeb was "canceled" after problematic behavior, your words were protected under the First Amendment. Though you can't threaten someone with bodily harm, you can threaten them with a boycott.
- Photo: Sage Ross / Wikimedia Commons / CC BY-SA 3.0
Fighting Words: Not Protected
The First Amendment doesn't allow people to incite violence or encourage illegal activity. Courts judge what constitutes "fighting words" based on how an average citizen would interpret what you say.
For example, if someone went on Twitter and told their followers to punch a Nazi, they wouldn't be protected by the First Amendment. "Fighting words" also encompass insults meant to egg someone else into violence during a face-to-face argument.
Hate Speech: Protected
Anti-Semitism, racism, and other forms of hate speech all receive constitutional protection. But according to the ACLU, if bigoted speech ebbs into the realm of targeted harassment, threats, or creating a hostile environment for an individual, it may not be protected.
- Photo: jonanamary / Flickr Creative Commons / CC BY-NC 2.0
Nonverbal Symbols Of Hate: Protected
According to the ACLU, the Constitution protects symbols of hate, even if someone wears or displays them in a public place. There is a limit to how someone can use symbols of hate, though. They are not protected when used to intimidate another person or to desecrate private property, such as someone's home or car.
Child Pornography: Not Protected
Full stop: Child pornography is always illegal. Any speech depicting a minor performing a sexual act or showing their private parts loses all protection under the First Amendment.