Free Speech 101: Rights Every American Should Know

A recent confrontation in Fort Worth, captured on video and widely shared online, has renewed discussion about the scope of the First Amendment and the rights of Americans in public spaces. In the video, Christian street evangelists were told by Fort Worth police officers that they could face arrest if they continued sharing their message after bystanders complained that the speech was offensive. Regardless of one's view of the speakers or the content of their message, the incident serves as a timely reminder of what the Constitution actually protects: speech does not lose First Amendment protection simply because others find it offensive or disagree with its viewpoint.

The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." Over time, the U.S. Supreme Court has interpreted that protection broadly, recognizing that the government generally may not restrict speech simply because it is unpopular, controversial or offensive.

The constitutional question in situations like the one in Fort Worth is not whether listeners approve of the message being expressed, but whether the speech falls into one of the narrow categories of expression that the Supreme Court has held may be lawfully restricted. Simply offending listeners is not one of those categories. The Supreme Court has repeatedly held that speech may not be restricted merely because listeners find it offensive. Instead, speech generally loses constitutional protection only in a few narrow and well-defined circumstances, including true threats, incitement to imminent lawless action, obscenity, certain forms of defamation, and speech integral to criminal conduct.

In Brandenburg v. Ohio (1969), the Supreme Court held that even inflammatory political speech is protected unless it is directed to inciting imminent lawless action and is likely to produce such action. Likewise, in Texas v. Johnson (1989), the Court ruled that even flag burning—a form of expression many Americans find deeply offensive—is protected speech under the First Amendment.

The Court has also made clear that public streets, sidewalks and parks occupy a special place in constitutional law. In United States v. Grace (1983), the Court reaffirmed that sidewalks are traditional public forums where speech enjoys the highest level of constitutional protection, subject only to reasonable, content-neutral restrictions on the time, place and manner of expression.

That does not mean every action is protected. True threats, defamation, obscenity, assault, trespassing, disorderly conduct, speech integral to criminal conduct, child pornography, and speech that intentionally incites imminent lawless action fall outside, or may fall outside, First Amendment protection depending on the circumstances. Nor does the First Amendment prevent private citizens from disagreeing with or responding to speech they oppose. What it does prohibit is the government suppressing protected expression because of its viewpoint.

Importantly, the Supreme Court's definition of obscenity is much narrower than the way the word is commonly used. Material does not lose First Amendment protection merely because it is offensive or contains explicit language."Obscenity" has a very specific constitutional meaning—it does not simply mean vulgar, profane, sexually explicit, or offensive material. The governing test comes from Miller v. California (1973), which established a three-part test for what legally qualifies as obscene. Most speech that people casually describe as "obscene" is actually protected by the First Amendment.

The Supreme Court further ruled in New York v. Ferber (1982) that child sexual abuse material (CSAM) is not protected by the First Amendment. Unlike obscenity, it is unlawful regardless of whether it meets the Court's legal definition of obscene material because of the government's compelling interest in protecting children from sexual exploitation.

The strength of the First Amendment lies in its neutrality. It protects speech across the political, religious and ideological spectrum. Americans remain free to persuade, debate, protest and advocate—but they do not possess a constitutional right to silence those with whom they disagree.

The Framers understood that liberty carries risk. The answer to objectionable speech, they believed, is more speech—not government censorship. That principle has guided the United States for more than two centuries and remains one of the defining characteristics of a free society.

In moments of public controversy, it is worth remembering that the Constitution protects not only the speech we applaud, but also the speech we would rather not hear. That enduring commitment is one of the hallmarks of American liberty.