Freedom of Speech

Freedom of speech is the right to speak, write, and share ideas and opinions without facing punishment from the government. The First Amendment protects this right by prohibiting Congress from making laws that would curtail freedom of speech.

Even though freedom of speech is protected from infringement by the government, the government is still free to restrict speech in certain circumstances. Some of these circumstances include:

  • Obscenity and Indecency – In Alliance for Community Media v. FCC, the Supreme Court found that obscenity and child pornography have no right to protection from the First Amendment, and as such, the government has the ability to ban this media altogether. But when it comes to indecency, which is generally defined by the courts as something describing or depicting offensive sexual activity, the Supreme Court has found this speech protected. But the government can regulate this speech on radio and television, so long as it’s for a compelling reason and is done in the least restrictive manner. 
  • Defamation – Private and public figures are able to sue someone for statements they have made. Public figures must prove that the person made the statement with malice, which means knowing the statement was false or having a reckless disregard for the truth or falsity of the statement. New York Times v. Sullivan. Private figures must prove the person failed to act with reasonable care when they made the statement. 
  • Incitement – If a person has the intention of inciting the violations of laws that is imminent and likely, while directing this incitement at a person or groups of persons, their speech will not be protected under the First Amendment. This test was created by the Supreme Court in Brandenburg v. Ohio
  • Fighting words 

While the public has a right to freedom of speech when it comes to the U.S. government, the public does not have this right when it comes to private entities. Companies and private employers are able to regulate speech on their platforms and within their workplace since the First Amendment only applies to the government. This right allowed Facebook, Instagram, and Twitter to ban President Donald Trump from their sites in 2021 without legal repercussion. Companies like Facebook and YouTube were also able to ban misleading information on Covid-19 during the 2020 pandemic.

The Supreme Court recently affirmed that private entities are not restricted by the First Amendment in the case Manhattan Community Access Corporation v. Halleck. Manhattan Neighborhood Network is a nonprofit that was given the authority by New York City to operate public access channels in Manhattan. The organization decided to suspend two of their employees after they received complaints about a film the employees produced. The employees argued that this was a violation of their First Amendment freedom of speech rights because they were being punished due to the content of their film. The Supreme Court held that Manhattan Neighborhood Network was not a government entity or a state actor, so the nonprofit couldn’t be subjected to the First Amendment.

In another case, Nyabwa v. Facebook, the Southern District of Texas also affirmed that private entities are not subject to the First Amendment. There, the plaintiff had a Facebook account, which spoke on President Donald Trump’s business conflicts of interest. Facebook decided to lock the account, so the plaintiff was no longer able to access it. The plaintiff decided to sue Facebook because he believed the company was violating his First Amendment rights. The court dismissed the lawsuit stating that the First Amendment prevents Congress and other government entities from restricting freedom of speech, not private entities. 

[Last updated in June of 2021 by the Wex Definitions Team