What are the limits on freedom of speech in the US constitution?

I heard somewhere that it doent guarantee the freedom to shout Fire! in a crowded theatre. What other bars on this freedpm are there, and are the courts these days inclined to whittle away at it, or genuinely preserve and even extend it. I speak as a resident of the UK (I cant say citizen because technically all of us in this realm are subjects of the monarch rather than citizens) where freedom of speech is a bad joke, and the government instructs us what we can and cannot say. I`ve always envied Americans their liberties, and just wondered whether your freedom of speech is as absolute as it once was.

It was never absolute. Nevertheless, there is probably greater freedom of speech now than ever before in America.

Your question on what limits exist is far too broad for any response on a message board. I would suggest reading the annotations to the First Amendment on this site as a decent overview.

Our freedom of speech has never been absolute. Non of our liberties have ever been absolute. My freedom to swing my fist had always ended where your nose begins.

As you knwo, the Supreme Court of the United States has the authority to examine laws for constitutionality. The current court has tended to be about middle-of-road about the First Amendment.

But I suppose there’s no point going into more detail, as you won’t be back to respond. After all, I’m sure the jackbooted thugs are beating your door down right now. :rolleyes:

Well I’m sure glad we have the second Amendment so we can keep the Queen of England out of my face :slight_smile:

In any event.

People here in the US get confused about what freedom of speach really means:

It does not include the right to yell “fire” in a theater, incite a riot or otherwise endanger public safety.

It does not include slander (malicious lieing).

Most people already know this. What many people don’t seem to realize is that:

The government does not have to PROVIDE the forum for your free speach.

Just because you have the right to say it doesn’t mean anyone cares.

The constitution only applies to the government. Your company can dictate what and how you speak at the office. If I tell you “shut the fuck up” in my house, the constitution also will not protect you.

It does not include obscene material. Obviously this is very subjective and varies form community to community.
As with all rights, freedom of speach is not absolute for the practical reason that 250million people just can do whatever the hell they want, whenever they want to.

As I have in past threads on this topic, I’d like to suggest three books that’ll give you a sense of the breadth and scope of free speech rights in this country. I’d suggest that those rights have expanded and contracted at various times in U.S. history and, like minty, think that there’s likely more leeway now than at any time before.

Anyway, the books are these:

The System of Freedom of Expression, by Thomas Emerson. Encyclopedic and comprehensive up till 1970. Here’s a passage on the current (at that time, anyway) chaotic state of First Amendment jurisprudence, p15:

That was written, of course, prior to the Pentagon Papers case, Buckley v. Valeo, Texas v. Johnson, and a number of other significant First Amendment decisions. Still, I think it describes fairly accurately the free speech landscape today.

Second book: There’s No Such Thing as Free Speech, and It’s a Good Thing Too, by noted provocateur Stanley Fish. In it, he argues the obvious yet unappreciated point that not only has freedom of speech never been absolute, but that it never can be absolute–there will always be limits on speech or expression that a civil society will presume to be acceptable. Therefore, any invocation of free speech as a neutral principle will necessarily be an empty set; absent truly absolute freedom of speech (freedom to scream unceasing obscenities in a courtroom, for example), speech’s freedom must be defined by its boundaries and constraints: by, in essence, those things which society adjudges to be not free and, therefore, not speech. A representative passage, p129:

Controversial but thought-provoking, to be sure.

The final recommendation is Freedom of Speech and Press in Early American History: Legacy of Suppression, by Leonard Levy (now revised and entitled Emergence of a Free Press. This book basically traces distinct governmental limitations on speech and press from before the American Revolution, and concludes that there is no point in U.S. history at which the First Amendment could be seen to be interpreted to full, expansive effect.

Good books all. If someone wants to dispute the theses of any one of them, this thread looks like it’d be a good place to do so. :slight_smile:

The protection of speech mentioned in the US Constitution is often misunderstood. The government is forbidden the exercise of prior restraint of the people’s right to express their points of view. The fact that you have a right to speak does not change the fact that you are responsible for what you say or write. Slander, or libel are not protected, only the ability to communicate with each other publicly, or privately.

If the consequences of your speech are detrimental to another person, or to the society as a whole, your right to speak does not abrogate your responsibility for the results of your speech. Inciting rebellion is not the exercise of free speech, it is an exhortation to commit crimes. The famous “fire in a crowded theater” example is an obvious case where the intent is to cause panic, and that any injury or damage resulting from that panic are foreseeable consequences of the act. A law against talking about fires in theaters is prior restraint. A law against deliberately causing panic in others is not a restraint of speech.

If you take a photograph of a sexual act between an adult, and a minor it is not protected speech, it is evidence of a felony. It is also potentially harmful to the interests of the minor, both immediately, and into the future. You have no right to free speech in that case. If you assist in publication, or distribution of such material, you are complicit in those acts, and your free speech rights do not alter that complicity. Soliciting the creation of such material is not free speech, it is an exhortation to commit a crime. Advertising the existence of such materials, or even a market for them could also be a deliberate incitement of a criminal act.

If the Government decides that discussing government actions in the media is dangerous, it cannot simply deny the right of people to speak or write about government actions. Prior restraint of the right to speak is protected. Holding people responsible for the consequences of publishing troop movements is not prohibited. If the information were published to intervene with authorized government agents, in war, or police matters, such an act would not be protected, and might well constitute treason, or obstruction of justice.

Speaking with callous disregard for the results of one’s words is not prohibited by law, but the speaker can certainly be held legally responsible for the results, whatever his intent may have been. It is possible that a person who incited a criminal act is responsible for the consequences of an act committed by another person, if it is a reasonably likely consequence of the speaker’s words.

The protection is against prior restraint imposed on the people, by the government. It is not a protection of all expression by the people. It does not legalize false witnessing, slander, espionage, or other criminal acts, simply because the act includes speaking. It does not limit the right of the people to seek redress for harm done by someone simply because the someone used words, or art to accomplish that harm. Speech is only protected from control before the fact by the government.

I am not required to assist you in your speech, read your drivel, or allow you to store your words on my server. I may refuse to sell your magazine in my store. I can refuse to allow any speech you make to be aired on my equipment, or in any private medium over which I have influence. You may speak; I don’t have to listen. If I find your posts offensive, and it’s my BBS, I can legally delete whatever I wish from you, even selectively, without your permission, and it is not a violation of your right of free speech. I can do so at my whim, and have no legal responsibility to even notify you of the fact.

You can start your own BBS, and publish the fact that I have done so, too. But you have to pay for it yourself. I don’t have to help you do it, and I can prevent you from posting links to your BBS on mine, if I want.


“The road to truth is long, and lined the entire way with annoying bastards.” ~ Alexander Jablokov ~

By the way, a little nitpicking here: Contrary to what mdboronti, msmith, and Tris have said, you most certainly are free to yell “Fire!” in a crowded theatre.

…If the theatre’s on fire. :slight_smile: (It’s falsely shouting “Fire!” in a theatre which prompted the disappropation of Justice Holmes.)

Yeah? Well, what about yelling “Theater!” in a crowded fire?

To be pedantic, the Supreme Court decision said you weren’t free to falsely shout ‘Fire!’

It seems to me that Americans have great freedom of speech, except in the area of elections. (This is ironic, because political speech is supposed to be the most protected class.) Even before the recent campaign finance reform law passed, there were restrictions, reporting requirements and limitations on speech as related to political campaigns. E.g., as an individual, I may donate any amount of money to a soap company for them to buy advertisements. However, I’m strictly limited in how much I could donate to a political candidate for her campaign advertisements.

The new law has much harsher restrictions. Most people expect that some portion of it will be overturned.

Newsflash, december: Political contributions aren’t speech. Read Buckley.

An often used way to restrict freedom of speech is in the face of, “clear and present danger.” If telling people that random person A is a murderer and child molester just released from prison, this presents a clear and present danger that I will beable to incite a mob to go after this person and kill them. Same concept with yelling, “Fire!”. Also, this is what prevents journalists from reporting on certain things if they threaten national security.

If you want to make a rational (or irrational) argument that a specific theater isa fire danger, or present evidence that Person A is a murderer and child molester who has escaped from law enforcement authorities in a manner that will not infringe upon public safety, then this speech is protected.

Do you have a cite for the clear and present danger standard being used to uphold a speech restriction of this sort? It seems to me this would simply fall under defamation.

As my neighbor once said, “You can do whatever you want. You just have to face the consequences of doing so.”

In other words, you’re certainly free to shout, “FIRE!” in a crowded theater, when there’s no fire. AFTERWARDS, however, you’re gonna get your ass hauled off to jail.

“Clear and present danger” is an obsolete doctrine. It isn’t often-used at all. In fact, I think Holmes overturned it–in Schenck or Abrams? Lemme check. According to Emerson, the test was “emasculated” by Vinson’s opinion in Dennis v. United States, 341 U.S. 494 (1951), and soundly rejected in favor of balancing by Frankfurter’s concurrence. According to Emerson, the clear and present danger test, even in the diluted form favored by Vinson, hasn’t been used since.


Um…dunno why I underlined that first “Emerson.” sheepishly backing away from the Bluebook

Uh, Gadarene, that’s what I was complaining about.

Guinastasia: In other words, you’re certainly free to shout, “FIRE!” in a crowded theater, when there’s no fire. AFTERWARDS, however, you’re gonna get your ass hauled off to jail.

Right Guin, but the OP was remarking on comparative levels of legally protected freedoms. The ability to violate the law doesn’t really count as a “freedom” in the civil-rights sense.

If we apply the same rules to the First Ammendment as some people do to the Second, then the “freedom of speech” applies only to the offices of the government, since “the people” in the Second Amendment is said to mean only “people in the government”.

Besides, the First Ammendment says “Congress shall make no law…” It doesn’t say anything about state governments, the President, any part of state governments…

[sub](ahem If you look closely, you will notice a bulge in my cheek that is caused by firm placement of my tongue.)[/sub]

Actually, your complaint seems to be that CFR restricts speech by limiting political contributions:

I’m merely pointing out that SCOTUS doesn’t consider contributions to be speech at all, political or otherwise, and your First Amendment concerns are therefore misplaced. If you’d like to argue that Buckley was wrongly decided, be my guest (I seem to recall traversing this road with jmullaney a while ago). But regarding current jurisprudence, it’s entirely wrong to consider the giving of money (be it to political campaigns or soap companies or tow-headed orphans) to be speech such that First Amendment protections are activated. Your post is without foundation.


However, the payment for one’s ability to speak one’s mind has been paid by others between 1775 and 1945, with sporadic instances of payment since.