The right to free speech

What It Covers

The First Amendment's protection of free speech has been contested since its 1791 ratification. Law professor Mary Anne Franks explains how the 1969 Brandenburg v. Ohio case established the current imminent lawless action test, protecting speech unless it directly incites immediate illegal activity, fundamentally reshaping whose voices receive constitutional protection.

Key Questions Answered

• •Constitutional ambiguity: The First Amendment protects five freedoms including religion, press, assembly, petition, and speech, but uses the phrase "freedom of speech" rather than just "speech," suggesting the founders intended a specific abstract concept. This linguistic choice creates ongoing legal confusion about what qualifies as protected expression versus harmful conduct requiring government intervention.
• •Immediate contradiction: Congress passed the Alien and Sedition Acts in 1798, just seven years after ratifying the First Amendment, directly prohibiting criticism of the government. This early violation demonstrates the tension between protecting expression and preventing perceived threats to national security, a debate that continues to define First Amendment jurisprudence today.
• •Brandenburg standard: The 1969 Brandenburg v. Ohio case overturned the 1927 Whitney v. California precedent, replacing the clear and present danger test with imminent lawless action. Speech can only be prohibited if the speaker intends to incite immediate illegal action and such action is likely to occur imminently, creating an extremely narrow window for government restriction.
• •Corporate speech expansion: During the 1970s through 1990s, First Amendment protections increasingly extended to corporations, pornographers, and the tobacco industry, shifting from protecting individual dissidents to shielding powerful commercial interests. This evolution transformed free speech doctrine from a progressive tool into a mechanism for excluding marginalized groups while protecting profitable enterprises.
• •Hate speech definition problem: The term hate speech lacks legal definition, causing confusion about constitutional protection. Offensive comments generally receive First Amendment protection, while workplace racial harassment does not. The Supreme Court already excludes defamation, obscenity, fighting words, fraud, and child pornography from protection, demonstrating that harm-based speech restrictions already exist within constitutional doctrine.