by Kelly Vogt

Created on: November 22, 2010   Last Updated: December 27, 2010

“Freedom of speech” is a phrase that is often tossed around, but what does it really mean?  Here is a basic guideline to your constitutionally mandated right to freedom of speech.

- Where does my right to freedom of speech come from? -

The First Amendment prohibits Congress from abridging the freedoms of speech.  In Gitlow v. New York, 268 U.S. 652 (1925), the United States Supreme Court held that the Due Process Clause of the First Amendment is applicable to the states via the Fourteenth Amendment. 

- So does this mean I can say whatever I want? -

Despite the seemingly unqualified nature of the First Amendment, freedom of speech is not an absolute right.  Rather, the governmental interest in regulation must be balanced against the restraint upon individual freedom to speak.  Examples of unprotected speech include advocacy of imminent unlawful action likely to produce such action, fighting words, obscenity, defamation, and untruthful or misleading advertising.  Another type of unprotected or less protected speech is incitement of illegal activity.

- How do I know if a law regulating my freedom of speech is constitutional? -

There are two types of laws and regulations related to the First Amendment.  The first are content-neutral laws, and the second are content-based laws.  Content-neutral laws apply to all speech and have neither viewpoint nor subject matter restrictions.  An example of a content-neutral law is a law prohibiting demonstrations in a city park.  The issue with content-neutral laws is whether the regulation is unrelated to the message being conveyed.  

Conversely, content-based regulations turn on the content of speech, such as a law prohibiting abortion-related demonstrations in a city park.  There are two sub-categories within content-based regulations: (1) viewpoint restrictions, and (2) subject matter restrictions. 

A viewpoint restriction limits expression based on a particular viewpoint, like a restriction that would allow anti-abortion protests, but not pro-choice protests. 

A subject matter restriction constrains speech on a specific subject matter, such as prohibiting abortion-related demonstrations in a city park.  It is presumptively unconstitutional for the government to place burdens on speech because of its content.  In order to justify differential treatment of speech, the government must show that the regulation is necessary to serve a

• 1
• 2
• Next Page >>