The First Amendment of the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peacefully to assemble, and to petition the Government for a redress of grievances.” However, free speech isn’t an all-inclusive principle, meaning that there are some instances of speech and expression that the First Amendment doesn’t protect. What is protected speech?
Free speech and protected speech
One reason for continually examining free speech is that the Constitution is vague. The Supreme Court further defined free speech: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” (Texas v. Johnson). This language restricts the government’s ability to constrain speech, but, the limitations of speech and expression often depend on context, such as a corporate office or a school.
Free speech laws are extremely complex, and it’s critical to remember that free speech doesn’t protect things like defamation and libel, threats, false advertising, and more.
Differences between protected speech and unprotected speech
There are many exceptions to free speech that the Supreme Court has supported for some time. For example, the Court has decided that the First Amendment provides no protections for things like obscenity, child pornography, or speech that constitutes true threats or “fighting words,” which may produce a clear and present danger. The Court provides less than full protections for many other types of speech, including:
- Commercial speech
- Defamation, libel, and slander
- Speech that might be harmful to children
- Speech broadcasts on television and radio
- Public employees’ speech
At the same time, the Supreme Court, as well as many government and nonprofit agencies, have contributed to the definition of protected speech as well. As a broad rule, virtually all other types of speech are protected, but the government may be able to regulate speech in certain circumstances. The government may attempt to regulate an act of free speech (including verbal communication as well as visual, art, music, theater, dance, literature, and more) through prior restraint. Additionally, acts that normally have the fullest First Amendment protections may still be restricted due to “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”
What to do if your free speech rights were violated
To better understand what constitutes protected speech and unprotected speech (and therefore, your rights in Colorado regarding free speech), here are a few examples:
- Subversive advocacy — Individuals can express lawlessness, but there is a limit to this protection. For subversive advocacy (expression promoting lawlessness) to fall outside of First Amendment protections, it needs to be directed at producing imminent lawless action and the speech needs to be likely to produce lawless action.
- Fighting words — Similar to the above example, speech cannot incite clear and present danger or violence. However, fighting words often need to be insults personally directed at a person and not political statements that the person would find offensive. Provocative political speech is often fully protected, but not clear and directed insults designed to start a fight or a threat.
- True threats — True threats are defined as “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.” As such, the speaker may not need to carry out the threat, but only to intently produce fear of bodily harm or death in the victim.
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Obscenity — Material, speech, and/or expression must meet the following three standards to be considered obscene and not protected by First Amendment laws. These three standards include:
- Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest
- Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
- Child pornography. Plainly put, child pornography is an unprotected category of expression.
- Commercial expression that concerns illegal activity, or commercial expression that is false or misleading — Commercial speech is only protected if it contains legal activity and it’s content is true and not misleading.
Contact the Civil Rights Litigation Group in Denver
The Civil Rights Litigation Group deals with issues regarding free speech. First Amendment and protected speech legal cases can be extremely complex, but at the same time, it is clear when someone is making true threats, producing obscene material, or producing false advertising and misleading information. Fortunately, if your right to free speech is being regulated or restricted in any way — or you’re facing adverse repercussions for your speech, and your speech doesn’t fall under the umbrella of “unprotected speech”— then call the Civil Rights Litigation Group in Denver, CO. We offer free, no-obligation consultations.
