# What are the limits on freedom of speech in the US constitution? **URL:** \ **Category:** Great Debates\ **Created:** [April 27, 2002, 8:27pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005 "2002-04-27T20:27:22Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![aldiboronti](https://avatars.discourse-cdn.com/v4/letter/a/9fc348/32.png) [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)\ **Post date:** [April 27, 2002, 8:27pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/1 "2002-04-27T20:27:22Z")
I heard somewhere that it doen`t 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 can`t 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. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [April 27, 2002, 8:32pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/2 "2002-04-27T20:32:22Z")
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](http://caselaw.lp.findlaw.com/data/constitution/amendment01/) as a decent overview. ---
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [April 27, 2002, 8:36pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/3 "2002-04-27T20:36:24Z")
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: ---
**Author:** ![msmith537](https://avatars.discourse-cdn.com/v4/letter/m/d9b06d/32.png) [@msmith537](https://boards.straightdope.com/u/msmith537)\ **Post date:** [April 27, 2002, 9:12pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/4 "2002-04-27T21:12:58Z")
Well I’m sure glad we have the second Amendment so we can keep the Queen of England out of my face 🙂 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. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [April 27, 2002, 9:27pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/5 "2002-04-27T21:27:49Z")
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: > [@](#): > > The outstanding fact about the First Amendment today is that the Supreme Court has never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete cases. At various times the Court has employed the bad tendency test, the clear and present danger test, an incitement test, and different forms of the ad hoc balancing test. Sometimes it has not clearly enunciated the theory upon which it proceeds. Frequently it has avoided decision on basic First Amendment issues by invoking doctrines of vagueness, overbreadth, or the use of less drastic alternatives. Justice Black, at times supported by Justice Douglas, arrived at an “absolute” test, but subsequently reverted to the balancing test in certain types of cases. The Supreme Court has also utilized other doctrines, such as the preferred position of the First Amendment and prior restraint. Recently it has begun to address itself to problems of “symbolic speech” and the place in which First Amendment activities can be carried on. But it has totally failed to settle on any coherent approach or to bring together its various doctrines into a consistent whole. Moreover, it has done little to deal with some of the newer problems, where the issue is not pure restraint on government interference, but rather the use of governmental power to encourage freedom of expression or the actual participation by government itself in the system of expression. 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: > [@](#): > > First Amendment rhetoric presupposes the ordinary situation as one in which expression is wholly unconstrained and then imagines situations of constraint as special. But the truth is exactly the reverse: the special and almost-never-to-be-encountered situation is one in which you can say what you like with impunity. The ordinary situation is one in which what you can say is limited by the decorums you are required to internalize before entering. Regulation of free speech is a defining feature of everyday life, not because the landscape is polluted by censors, but because the very condition of purposeful activity…is that some actions (both physical and verbal) be excluded so others can go forward. > > * * * > > If we keep in mind that regulation of speech is constitutive of meaningful discourse, we will not regard proposals for regulation as anomalous but receive them as suggested modifications of a condition–the condition of productive constraint–that has always obtained. > > * * * > > My rule of thumb is “don’t regulate unless you have to,” because the machinery of regulation is liable to cause more problems than it solves; but on some occasions the balance may tip in the other direction, and then, however reluctantly and cautiously, you may have to consider regulatory action. > > * * * > > But that means, someone will say, that you will always be drawing the line in an ad hoc and inconsistent way, and the line should be drawn in a _principled_ way. And I would reply that the so-called principled drawing of the line by distinctions like that between speech and action, or between content and time-place-manner regulations, or between high- and low-value speech, or between fighting words and words that are merely expressive, will be equally ad hoc and context-sensitive; there is no other way to draw a line except in the context of an act of judgment that rests on disputable definitions and stipulations of value. What is a fighting word today may not be one tomorrow and may not be everyone’s fighting word even today; what is low-value speech under one set of conditions may become high under another. Line drawing, in short, will always be a political and contestable action and therefore inseparable from the biases and blindnesses inherent in politics. 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. 🙂 ---
**Author:** ![Triskadecamus](https://avatars.discourse-cdn.com/v4/letter/t/b19c9b/32.png) [@Triskadecamus](https://boards.straightdope.com/u/Triskadecamus)\ **Post date:** [April 27, 2002, 9:28pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/6 "2002-04-27T21:28:52Z")
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. ## Tris “The road to truth is long, and lined the entire way with annoying bastards.” ~ Alexander Jablokov ~ ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [April 27, 2002, 9:31pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/7 "2002-04-27T21:31:34Z")
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. 🙂 (It’s falsely shouting “Fire!” in a theatre which prompted the disappropation of Justice Holmes.) ---
**Author:** ![Triskadecamus](https://avatars.discourse-cdn.com/v4/letter/t/b19c9b/32.png) [@Triskadecamus](https://boards.straightdope.com/u/Triskadecamus)\ **Post date:** [April 27, 2002, 9:37pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/8 "2002-04-27T21:37:15Z")
Yeah? Well, what about yelling “Theater!” in a crowded fire? ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [April 27, 2002, 9:37pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/9 "2002-04-27T21:37:48Z")
> [@](#): > > \*Originally posted by aldiboronti \* > \*\*I heard somewhere that it doen`t guarantee the freedom to shout `Fire!` in a crowded theatre. \*\* 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. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [April 27, 2002, 9:44pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/10 "2002-04-27T21:44:51Z")
Newsflash, **december** : Political contributions aren’t speech. Read Buckley. ---
**Author:** ![threemae](https://avatars.discourse-cdn.com/v4/letter/t/5f9b8f/32.png) [@threemae](https://boards.straightdope.com/u/threemae)\ **Post date:** [April 27, 2002, 10:04pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/11 "2002-04-27T22:04:39Z")
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. ---
**Author:** ![ruadh](https://avatars.discourse-cdn.com/v4/letter/r/d2c977/32.png) [@ruadh](https://boards.straightdope.com/u/ruadh)\ **Post date:** [April 27, 2002, 10:13pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/12 "2002-04-27T22:13:17Z")
> [@](#): > > \*Originally posted by threemae \* > **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.** 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. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [April 27, 2002, 10:15pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/13 "2002-04-27T22:15:35Z")
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. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [April 27, 2002, 10:18pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/14 "2002-04-27T22:18:18Z")
> [@](#): > > An often used way to restrict freedom of speech is in the face of, “clear and present danger.” “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. FYI. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [April 27, 2002, 10:19pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/15 "2002-04-27T22:19:39Z")
Um…dunno why I underlined that first “Emerson.” _sheepishly backing away from the Bluebook_ ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [April 28, 2002, 3:03am UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/16 "2002-04-28T03:03:56Z")
> [@](#): > > \*Originally posted by Gadarene \* > \*\*Newsflash, **december** : Political contributions aren’t speech. Read Buckley. \*\* Uh, **Gadarene** , that’s what I was complaining about. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [April 28, 2002, 3:22am UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/17 "2002-04-28T03:22:29Z")
**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. ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [April 28, 2002, 4:37am UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/18 "2002-04-28T04:37:39Z")
> [@](#): > > Well I’m sure glad we have the second Amendment so we can keep the Queen of England out of my face 🙂 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] ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [April 28, 2002, 6:24am UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/19 "2002-04-28T06:24:29Z")
> [@](#): > > \*Originally posted by december \* > \*\*Uh, **Gadarene** , that’s what I was complaining about. \*\* Actually, your complaint seems to be that CFR restricts speech by limiting political contributions: > [@](#): > > 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.) 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. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 28, 2002, 5:36pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005/20 "2002-04-28T17:36:12Z")
TANSTAAFS. 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. [Next page](https://boards.straightdope.com/t/what-are-the-limits-on-freedom-of-speech-in-the-us-constitution/106005.md?page=2)