Free Speech in America

Free speech in America is central to our democracy. But do Americans really understand this right and the very real limitations on speech? It is worth noting in these challenging times that when people choose to ignore the restrictions on free speech it could lead to legal woes. 

Recent High-Profile Example

Alex Jones, who spent about a decade gushing falsehoods about the shooting at Sandy Hook Elementary School on his radio show, wound up being sued for the damage he caused to the survivors of the shooting. A jury sided with the plaintiffs, which resulted in Jones being ordered to pay hundreds of millions of dollars to the families of victims in a combination of compensatory and punitive damages. Jones argued that he was being prosecuted –and persecuted–simply for using his First Amendment right to free speech. The jury did not buy it.  It is true that the First Amendment protects the right to express dissenting opinions, even when those opinions are flat-out wrong based on the facts, they are offensive, or they are cruel. However, it does not protect against defamatory speech. Sandy Hook families were able to launch civil charges against Jones for defamation, and the juries agreed that his words were not protected.

Some Speech is Not Protected by the First Amendment

In fact, there are several types of free speech that are not protected by the Constitution. These include:

  • Defamation and label;
  • Vandalism;
  • Criminal threats;
  • Child pornography;
  • Unlawful assembly;
  • Refusing to disperse if police direct one to;
  • Trespassing;
  • Obstruction of a law enforcement officer.

Hate Speech

Hate speech has been in the news a lot these days. There is actually no legal definition for hate speech, but most people recognize that it relates to any speech that is demeaning or insulting to a particular group that is based on sexual orientation, religion, race, disability, or gender. Speech directed toward specific subgroups like these is not protected by the first amendment in this country


The Supreme Court has ruled that highly controversial actions such as burning an American flag are protected by the First Amendment, despite the fact that many in this country find such behavior to be detestable. On the other hand, it is unlawful to use a symbol as a threat to others. What about carrying a confederate flag or wearing a swastika if others feel threatened by those items? This is essentially a gray area, and each case is determined on its own merits and the level of threat involved.

Have Your First Amendment Rights Been Violated?

Just because someone may not agree with your speech, it does not take away your rights to that speech as long as that speech does not fall within narrow guidelines. If you have been charged with crimes in violation of your first amendment rights, you need a dedicated local criminal defense attorney who is willing to go to bat for you. At Boertje & Associates, our goal is to fight for the best possible outcomes for you. Schedule a free, confidential consultation in our San Diego office today. 

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