Freedom of Speech and Expression 101

Learn about the basic concepts of free speech, expression, and what is and what is not protected by the First Amendment to the U.S. Constitution.

The First Amendment

The First Amendment is applicable not just to Congress and the federal government, but to state and local public officials and entities as well, including UC San Diego.

Protection of speech by the First Amendment is intended to encourage the free flow of ideas and to protect individuals whose speech may be considered unpopular or dissentious.

While the First Amendment is very broad in its application, there are certain types of speech and expression that are not protected by the First Amendment. Attempts to regulate these types of unprotected speech generally fall into one of two categories: "content regulations" and "conduct regulations."

Content Regulations

Some laws and policies are drafted with the intention of preventing the expression of specific ideas and messages. Such attempts to regulate content are presumptively impermissible. Still, there are certain—though very limited—types of speech that are not protected by the First Amendment and are subject to regulation. However, despite the above exceptions, the First Amendment protects virtually all speech, no matter how unorthodox, offensive, or distasteful. See, e.g., United States v. Eichman, 496 U.S. 310, 318 (1990); Texas v. Johnson, 491 U.S. 397, 414 (1989); Cohen v. California, 403 U.S. 15, 20 (1971). The categories listed below are extremely narrow, and courts will tend towards finding speech to be protected under the First Amendment, no matter how hateful or offensive it may be.

  • Obscenity — Speech/materials may be deemed obscene (and therefore unprotected) if the speech meets the following (extremely high) threshold: It (1) appeals to the "prurient" interest in sex, (2) is patently offensive by community standards, and (3) lacks literary, scientific or artistic value.
  • Incitement of Illegal Activity — Words that are likely to incite or produce imminent lawless action. “The incitement test” came about from the Supreme Court’s ruling on Brandenburg v. Ohio (1969). In order to be found guilty of incitement, the speaker’s words must have a strong probability of directly encouraging others to commit illegal acts in the immediate future..
  • Fighting words — Abusive language (e.g., offensive speech regarding race, religion, sexual orientation) conveyed in a face-to-face setting that would likely result in target of the speech engaging in a physical response (e.g., hitting the person who made the offensive remark).
  • Defamation — An intentional and false statement about an individual that is publicly communicated in written (called "libel") or spoken (called "slander") form, causing injury to the individual.
  • Perjury — A knowingly false statement given under oath in court.
  • Extortion — Obtaining property by wrongful use of force or fear.
  • Harassment — Conduct based on a protected category that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities. Davis v. Monroe County Board of Education (1999).
  • True threats — Statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker does not have to act on his or her words (e.g., commit a violent act) in order to be found guilty of true threat.
  • False advertising — A knowingly untruthful or misleading statement about a product or service.
  • Certain symbolic actions, if the actions are otherwise illegal.
    • Examples: Tagging/graffiti, littering, burning a cross on private property.
  • Plagiarism of copyrighted material
  • Child pornography

Conduct (aka "Time, Place and Manner") Regulations

Certain laws and policies (such as the UC San Diego Policy on Free Speech, Advocacy and Distribution of Literature on University Grounds) regulate the conduct pertaining to speech and expression, including the time, place, and manner of the speech, regardless of the content or message. Conduct regulations are more frequently protected by courts than content regulations so long as they are “content-neutral,” i.e., they do not attempt to forbid the communication of specific ideas.

  • Regulations involving conduct may include criminal violations as defined by state law, such as disturbing the peace or disorderly conduct.
  • Examples of permissible conduct regulations may include:
    • Time: Limiting amplified sound to certain hours.
    • Place: Prohibiting demonstrations at the entrance of campus buildings.
    • Manner: Limiting the size of flyers or signs at posting locations.