The First Amendment typically protects written and oral speech, although there are certain elements that may not be protected. Many Americans are skeptical of limiting any First Amendment rights and question limitations on free speech. The Supreme Court has historically been reluctant to limit speech unless it is slanderous, egregious, a threat to public safety, or a national security risk. These instances are often difficult to pinpoint, and courts generally err on the side of protecting speech. Recent developments such as the Patriot Act of 2001 have caused many civil libertarians concern about the future of free speech. The Patriot Act is designed as an anti-terrorism measure, but many skeptics believe it will infringe on individual rights and limit freedoms.

The Alien and Sedition Acts of 1798 allowed the president to deport undesirable aliens and criminalized speech that was derisive of the government. Twenty-five people were convicted under this Act before it was finally ruled unconstitutional, and Andrew Jackson issued a blanket pardon in 1801. The Sedition Act was revived during World War One under the Espionage Act of 1917. Words, writings, or activities that were deemed as disloyal or treasonous were made illegal and violators were prosecuted.

The line between speech and action is difficult to determine when words are used to encourage or promote unlawful actions. The Supreme Court developed the "clear and present danger" test in Schenck v. United States (1919), ruling that the government may prohibit speech that creates an immediate threat of criminal action. In Gitlow v. New York (1925), the Supreme Court upheld Gitlow's conviction for distributing socialist propaganda that supported the violent overthrow of the government. Despite Associate Justice Oliver Wendell Holmes's objection, the Court established the "dangerous tendency" test that attempts to measure the likelihood of violence or danger resulting from questionable speech. Despite upholding Gitlow's conviction, the Court made a significant ruling in favor of free speech. The Court stated that freedom of speech is protected by the due process clause of the Fourteenth Amendment.

In 1984, Gregory Lee (Joey) Johnson was convicted for burning an American flag in an environment that did not pose a threat to people or property. In Johnson v. Texas (1989), the Supreme Court ruled 5-4 that flag burning is protected expression and overturned Johnson's conviction. The late 1960s marked an era of protest, unrest, and rebellion. In 1969, the Supreme Court ruled that students could not be suspended for wearing black armbands to protest the war in Vietnam. Tinker v. Des Moines School District (1969) established precedents for freedom of speech in schools and government institutions.

Most forms of symbolic speech are protected; however, there are limitations. For example, the government is often allowed to regulate speech that occurs in a public forum or in special facilities such as military bases, schools, and prisons. Other limits on free speech involve obscenity, defamation, commercial speech, and speech that leads to unlawful actions. In United States v. O'Brien (1968), the Supreme Court upheld David O'Brien's conviction for burning his Selective Service draft card, ruling that the government was justified in limiting speech to protect its interests.

In Roth v. United States (1957), Roth challenged his conviction for creating and distributing pornographic material. The Supreme Court ruled that obscene speech that is "utterly without redeeming social importance" is not protected. Later, the Court reversed Roth and established a three-part test for obscenity in Miller v. California (1973), essentially giving local communities the authority to define and outlaw obscenity. To qualify as obscene, speech must be considered obscene by the "average" person, depict or describe material that is against state or federal law, and lack serious literary, artistic, political, or scientific value.

The Court has been stricter in its rulings regarding defamation. Defamation is using false information to damage the reputation of a person. When defamation occurs through the spoken word, it is called slander; when it is written, it is known as libel. Concluding that defamation lawsuits discourage free speech, the Court has developed very strict standards for proving slander and libel against public officials. In New York Times v. Sullivan (1964) the court provided that a public official had to prove intent of malice by a publisher to win a libel suit.

First Amendment protection for commercial speech or advertising is also limited. The government can prohibit false advertising and prevent the marketing of products or services that are illegal. In some cases, the government may also regulate the advertising of legal products. For example, in 1986, the Supreme Court ruled that the government can restrict advertisements for products that it has the power to outlaw. Consequently, Congress passed laws restricting the marketing of alcohol and tobacco products.

The Court has also allowed controversial commercial speech in cases such as Greater New Orleans Broadcasting Association v. United States (1999). New Orleans radio stations were airing advertisements for legal casinos in Mississippi, but the Federal Communications Commission (FCC) outlawed the ads, saying they promoted immoral behavior. The Court ruled that since the ban on casino advertising would have no discernable effect on limiting the hazards of gambling, it violated the First Amendment. This decision set a precedent for prohibiting restrictions that single out a specific form of speech for regulation while leaving others unaffected.

The use of fighting words is often regulated by the courts. In 1942, Chaplinsky appealed his conviction for committing a breach of the peace when he called a city marshal disparaging names. In Chaplinsky v. State of New Hampshire (1942), the Supreme Court upheld the conviction. The Court ruled that fighting words—words that inflict injury or tend to incite an immediate breach of the peace—do not convey ideas and are not protected by the First Amendment.

Later, the Supreme Court upheld the use of fighting words. A man named Paul Cohen was arrested in 1970 for wearing a jacket with an offensive political message written on it. He was convicted under a California statute prohibiting the malicious and willful disturbance of the peace and quiet of any neighborhood or person by offensive conduct. In Cohen v. California (1971), the Supreme Court overturned the conviction and set several key precedents. The Court ruled that the expletive was not directed at anyone or intended to provoke action in large numbers, so it was acceptable. The Cohen case changed the perception of free speech and broadened the scope of acceptable speech.

An extension of freedom of speech is peaceful assembly. The First Amendment allows citizens to speak, protest, or picket on public property as long as they do not disturb the peace or violate the law. In 1934, the police raided a communist rally and arrested Dirk De Jonge—one of the speakers—for criminal syndicalism, or advocating violence or sabotage. De Jonge appealed his eventual conviction, arguing that there was insufficient evidence to warrant his conviction and that his right to free speech had been violated. He also argued that the incorporation clause of the Fourteenth Amendment had been violated. The Court agreed, and De Jonge v. Oregon (1937) played a vital role in future First Amendment discussions about peaceful assembly.

Despite the significance of the De Jonge ruling, the Court has at times limited free assembly. In 1941, a group of Jehovah's Witnesses were arrested for parading without a permit while distributing leaflets. The group appealed their conviction, citing their right to peaceful assembly on public property. However, in Cox v. New Hampshire (1942), the Court upheld the conviction, stating that municipalities have the right to ensure the safety and convenience of public streets. No First Amendment violations occurred, as the police were simply protecting public safety and the greater good.

Copyright 2006 The Regents of the University of California and Monterey Institute for Technology and Education