There are Limits to Free Speech Rights

Free Speech: it is a right guaranteed by the First Amendment. But does that mean anything goes? Some may be surprised to learn that there are definite limits on what is allowed. 

What is Permitted

In this country, the concept of speech is more than simply actual words. It includes actions, as well.  Particular activities encompass the right of free speech, according to the US Supreme Court. They include:

  • The right to protest—that might be by wearing armbands, by marching, by refusing to purchase particular merchandise, or to kneel during the National Anthem, and much more;
  • The right to use offensive language—including ideas that offend others—when attempting to convey a political message;
  • The right to donate money (with limitations) to the political party of your choice; 
  • The right to participate in symbolic activities that may offend others, such as burning the American flag;
  • The right to refrain from speaking—specifically, the right to refuse to salute the American flag 
  • The right to advertise goods and/or services (with some restrictions).


While it may seem that Americans experience endless freedom when it comes to speech, there are some explicit boundaries.  Some speech that is not protected by the Constitution includes language that:

  • Incites criminal action;
  • Relates to the creation or distribution of obscenities;
  • Includes protesting a draft by burning draft cards;
  • Threatens to commit violence against someone else;
  • Is defined as fighting words that occur in face-to-face interactions and are likely to provoke a violent response from a typical person;
  • Involves the printing of articles in a school newspaper despite the objections of the school administration;
  • Is obscene speech at any school-sponsored activities;
  • Advocates using illegal substances at a school-sponsored activity.

Defining the Terminology

Unquestionably, some of the words related to free speech and its limitations are tough to understand and define. This requires a closer look at some of the terminology:

1-    Threats:  Even if a threat is not carried out, the making of any threat is illegal;

2-    Incitement:  While it is allowable to promote violence or lawlessness, it becomes a legal problem if the incitement is likely to produce imminent violence.

3-    Obscenity:  Three standards must be met in order for material to be considered legally obscene:

  1. a)     Sexual behavior is depicted or described in an offensive way as per community standards;
  2. b)    When viewed in its entirety the material violates community standards and is determined to appeal to one’s “prurient interest;”
  3. c)     Community standards render the material to have no literary, political, scientific, or artistic value.

When Speech Issues Lead to Legal Issues

Are you facing criminal charges for speech that you think should be protected by the First Amendment? At Boertje & Associates, our experienced criminal defense attorneys fight for the best possible outcomes for our clients every day. For a confidential consultation about your situation, schedule an appointment in our San Diego office today.

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