Free Speech

Freedom of speech is the right of a person to articulate opinions and ideas without interference or retaliation from the government. The term “speech” constitutes expression that includes far more than just words, but also what a person wears, reads, performs, protests and more. In the United States, freedom of speech is strongly protected by the First Amendment of the U.S. Constitution, as well as many state and federal laws. The United States’ free speech protections are among the strongest of any democracy; the First Amendment protects even speech that many would seen as offensive, hateful or harassing.

What types of speech are not protected?

The Constitution guarantees freedom of speech by default, placing the burden on the state to demonstrate whether there are any circumstances that justify its limitation.

The relevant exceptions to the First Amendment that have been established are:

• Speech that would be deemed a “true threat”: Speech that a person reasonably would perceive as an immediate threat to their physical safety is not protected by the First Amendment. For example, if a demonstrator yelled at an individual student and threatened a physical assault to the speech, then such speech would not be protected.
• Incitement of illegal activity: There is no right to incite people to break the law, including to commit acts of violence. To constitute incitement, the Supreme Court has said that there must be a substantial likelihood of imminent illegal activity and the speech must be directed to causing imminent illegal activity. For example, a speaker on campus who exhorts the audience to engage in acts of vandalism and destruction of property is not protected by the First Amendment if there is a substantial likelihood of imminent illegal activity.
• Harassment in an educational institution aimed at an individual on the basis of a protected characteristic (race, gender, sexual orientation, religion); that is also pervasive and severe; is a direct or implied threat to employment or education; or creates an intimidating, hostile and demeaning environment.