What Is Protected Free Speech (and What Isn't)?

Let’s talk about free speech: It is, after all, our constitutional right to talk about whatever we want, but since the Constitution imposes few limits on what we can say, people say inaccurate things all the time—including about the First Amendment. Let’s clear some of that up since we’re, you know, allowed to.

What is the First Amendment, and what does it protect?

First, here’s what the First Amendment of the Constitution of the United States of America says: “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 peaceably to assemble, and to petition the Government for a redress of grievances.”

Cool, so what does all of that mean? Clay Calvert, a professor at the University of Florida, broke it down in a chat with Lifehacker, explaining that while most of us are familiar with our right to choose our own religion or the press’ right to report freely on current events, the rights to peaceful assembly or to petition the government for grievances often go overlooked.

Regarding the First Amendment’s wording, he added, “Congress doesn’t just mean Congress. The Supreme Court has told us it includes any local, state, or federal entity or official.” So, no governing entity can make a law that restricts free speech, but—and this is key—the First Amendment only protects us against censorship by government entities or officials.

What speech is protected, specifically?

You can worship however you want, write whatever you want, and say whatever you want. The government can’t punish or censor you. If you are a parent who wants to cause a bit of a scene at a school board meeting, it’s covered by your right to petition for redress of grievances. If you are a professional football player who wants to kneel in protest of police brutality and systemic racism, that counts as symbolic expression, and you are free to do that. If you are smartphone owner who wants to bang out a few tweets about how much representatives on one side of the aisle or the other suck, go right ahead—even when you insult government officials directly, they cannot penalize you.

In 1989, the Supreme Court even maintained that burning an American flag is a constitutional right, five years after a man named Gregory Lee Johnson did just that during the 1984 Republican National Convention. He was convicted of the desecration of a venerated object in violation of the Texas Penal Code, but when his case made it to the Supreme Court a few years later, they ruled in favor of him, not Texas.

When is speech not protected?

So, to be clear, the government can’t do anything to stop you from saying whatever you want—but private companies can. The government couldn’t do anything to Colin Kaepernick when he took a knee, but the National Football League could. Officially, the NFL didn’t penalize Kaepernick at first, even when then-President Donald Trump called for the organization to punish him and other players who protested, but it’s widely believed he was blackballed for his anthem protests, and he filed a since-settled grievance claiming teams were colluding to keep him out of the league in the aftermath. In 2018, owners in the league ruled that players could no longer kneel during the anthem.

The NFL is not the government. It can make rules like that. Any private company can step in and make rules against what sort of speech is and is not allowed when using its products or services, representing it publicly, or otherwise engaging with it contractually, in fact. You know where this is going.

“The First Amendment to the United States Constitution only protects us against censorship by government entities and officials. Most people fail to realize or understand that key fact. Twitter is a private entity; it is not a government entity,” Calvert said. “Therefore, Twitter is not subject to the First Amendment when it chooses to deplatform individuals or to remove tweets that violate its terms of use or terms of service. It’s really much more of a contractual matter that if, when an individual signs up to join Twitter, they must comply with the terms of service or terms of use that Twitter specifies. If they violate them, then Twitter can remove them or remove a tweet and there is no First Amendment issue or violation whatsoever in that case. I think that’s really the biggest misconception that people have, that private entities can be regulated by the First Amendment.”

There are a few things that are not protected when it comes to the government, too: Child pornography is not protected by the First Amendment, for instance, nor is speech that is integral to criminal conduct. Direct threats are not protected. Obscenity is also not protected, but there is a whole host of other modifications there that allow content like, say, artistic nude photography or pornography to continue to be made. Calvert noted that while obscene speech has to be determined to be patently offensive in order not to be protected, if it can be shown to have literary, artistic, political, or scientific value, it’s fine. Plus, that is all based on contemporary community standards, he said, and definitions of obscenity are always evolving.

Note, finally, that though you can say whatever you want and the government can’t stop you, people can also react however they see fit. If you say something offensive to a relative, that person can decide not to talk to you without infringing on your rights. If you badmouth your company in public, your boss can choose to fire you. Your First Amendment rights don’t shelter you from any personal consequences that arise from exercising them.

Why does this matter?

The First Amendment is extremely important. Calvert pointed to other countries, like Russia or China, which limit people’s ability to criticize the government. In other countries, there can be serious repercussions for that, but here in America, you can post nasty memes about Republican Sen. Ted Cruz or Democratic President Joe Biden all day long and, as long as you’re not directly threatening them, you’re allowed to do it. Trump, also a Republican, is out of office now, but if you post memes about him, he may not see them, as he was banned from Twitter and most social media sites in 2021—which, again, is not a violation of free speech in any way.

The way free speech tends to be discussed, however, you might not realize that the deplatforming of a then-president wasn’t an attack on the First Amendment at all.

Billionaire Elon Musk acquired a 9.2% stake in Twitter recently, then offered to buy it earlier this week, writing in his filing, “I invested in Twitter as I believe in its potential to be the platform for free speech around the globe, and I believe free speech is a societal imperative for a functioning democracy. However, since making my investment I now realize the company will neither thrive nor serve this societal imperative in its current form. Twitter needs to be transformed as a private company.”

The debate about free speech will continue to rage on, even though the First Amendment has been pretty clear about what it includes since 1971. You are, of course, free to engage in the debate, but it’s best to do that armed with the facts and the knowledge that, again, private companies are not regulated by the First Amendment.