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What Does Free Speech Mean?

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

The First Amendment states, in relevant part, that:

“Congress shall make no law...abridging freedom of speech.”

Freedom of speech includes the right:

  • Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette , 319 U.S. 624 (1943).
  • Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines , 393 U.S. 503 (1969).
  • To use certain offensive words and phrases to convey political messages. Cohen v. California , 403 U.S. 15 (1971).
  • To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo , 424 U.S. 1 (1976).
  • To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council , 425 U.S. 748 (1976);  Bates v. State Bar of Arizona , 433 U.S. 350 (1977).
  • To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson , 491 U.S. 397 (1989);  United States v. Eichman , 496 U.S. 310 (1990).

Freedom of speech does not include the right:

  • To incite imminent lawless action. Brandenburg v. Ohio , 395 U.S. 444 (1969).
  • To make or distribute obscene materials. Roth v. United States , 354 U.S. 476 (1957).
  • To burn draft cards as an anti-war protest. United States v. O’Brien , 391 U.S. 367 (1968).
  • To permit students to print articles in a school newspaper over the objections of the school administration.  Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988).
  • Of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser , 478 U.S. 675 (1986).
  • Of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick, __ U.S. __ (2007).

Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation. 

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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The first amendment, interpretation & debate, freedom of speech and the press, matters of debate, common interpretation, fixing free speech, frontiers for free speech.

speech meaning in legal

by Geoffrey R. Stone

Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School

speech meaning in legal

by Eugene Volokh

Gary T. Schwartz Distinguished Professor of Law; Founder and Co-Author of "The Volokh Conspiracy" at Reason Magazine

“Congress shall make no law . . .  abridging the freedom of speech, or of the press.” What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.

Although the First Amendment says “Congress,” the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.

The Supreme Court has interpreted “speech” and “press” broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.

The Supreme Court has held that restrictions on speech because of its content —that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information “the people” should be allowed to hear.

There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.

1. In some circumstances, the Supreme Court has held that certain types of speech are of only “low” First Amendment value, such as:

a. Defamation: False statements that damage a person’s reputations can lead to civil liability (and even to criminal punishment), especially when the speaker deliberately lied or said things they knew were likely false. New York Times v. Sullivan (1964).

b. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished. Watts v. United States (1969).

c. “Fighting words”: Face-to-face personal insults that are likely to lead to an immediate fight are punishable. Chaplinsky v. New Hampshire (1942). But this does not include political statements that offend others and provoke them to violence.  For example, civil rights or anti-abortion protesters cannot be silenced merely because passersby respond violently to their speech. Cox v. Louisiana (1965).

d. Obscenity: Hard-core, highly sexually explicit pornography is not protected by the First Amendment. Miller v. California (1973). In practice, however, the government rarely prosecutes online distributors of such material.

e. Child pornography: Photographs or videos involving actual children engaging in sexual conduct are punishable, because allowing such materials would create an incentive to sexually abuse children in order to produce such material. New York v. Ferber (1982).

f. Commercial advertising: Speech advertising a product or service is constitutionally protected, but not as much as other speech. For instance, the government may ban misleading commercial advertising, but it generally can’t ban misleading political speech. Virginia Pharmacy v. Virginia Citizens Council (1976).

Outside these narrow categories of “low” value speech, most other content-based restrictions on speech are presumptively unconstitutional. Even entertainment, vulgarity, “hate speech” (bigoted speech about particular races, religions, sexual orientations, and the like), blasphemy (speech that offends people’s religious sensibilities), and violent video games are protected by the First Amendment. The Supreme Court has generally been very reluctant to expand the list of “low” value categories of speech.

2. The government can restrict speech under a less demanding standard when the speaker is in a special relationship to the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. A teacher in a public school, for example, can be punished for encouraging students to experiment with illegal drugs, and a government employee who has access to classified information generally can be prohibited from disclosing that information. Pickering v. Board of Education (1968).

3. The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are “reasonable.” Because such laws apply neutrally to all speakers without regard to their message, they are less threatening to the core First Amendment concern that government should not be permitted to favor some ideas over others. Turner Broadcasting System, Inc. v. FCC (1994). But not all content-neutral restrictions are viewed as reasonable; for example, a law prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment. Schneider v. State (1939).

Courts have not always been this protective of free expression. In the nineteenth century, for example, courts allowed punishment of blasphemy, and during and shortly after World War I the Supreme Court held that speech tending to promote crime—such as speech condemning the military draft or praising anarchism—could be punished. Schenck v. United States (1919). Moreover, it was not until 1925 that the Supreme Court held that the First Amendment limited state and local governments, as well as the federal government. Gitlow v. New York (1925).

But starting in the 1920s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the 1960s. Today, the legal protection offered by the First Amendment is stronger than ever before in our history.

Three issues involving the freedom of speech are most pressing for the future.

Money, Politics, and the First Amendment

The first pressing issue concerns the regulation of money in the political process. Put simply, the question is this: To what extent, and in what circumstances, can the government constitutionally restrict political expenditures and contributions in order to “improve” the democratic process?

In its initial encounters with this question, the Supreme Court held that political expenditures and contributions are “speech” within the meaning of the First Amendment because they are intended to facilitate political expression by political candidates and others. The Court also recognized, however, that political expenditures and contributions could be regulated consistent with the First Amendment if the government could demonstrate a sufficiently important justification. In Buckley v. Valeo (1976), for example, the Court held that the government could constitutionally limit the amount that individuals could contribute to political candidates in order to reduce the risk of undue influence, and in McConnell v. Federal Election Commission (2003), the Court held that the government could constitutionally limit the amount that corporations could spend in the political process in order to influence electoral outcomes.

In more recent cases, though, in a series of five-to-four decisions, the Supreme Court has overruled McConnell and held unconstitutional most governmental efforts to regulate political expenditures and contributions. Citizens United v. Federal Election Commission (2010); McCutcheon v. Federal Election Commission (2014). As a result of these more recent decisions, almost all government efforts to limit the impact of money in the political process have been held unconstitutional, with the consequence that corporations and wealthy individuals now have an enormous impact on American politics.

Those who object to these decisions maintain that regulations of political expenditures and contributions are content-neutral restrictions of speech that should be upheld as long as the government has a sufficiently important justification. They argue that the need to prevent what they see as the corruption and distortion of American politics caused by the excessive influence of a handful of very wealthy individuals and corporations is a sufficiently important government interest to justify limits on the amount that those individuals and corporations should be permitted to spend in the electoral process.

Because these recent cases have all been five-to-four decisions, it remains to be seen whether a differently constituted set of justices in the future will adhere to the current approach, or whether they will ultimately overrule or at least narrowly construe those decisions. In many ways, this is the most fundamental First Amendment question that will confront the Supreme Court and the nation in the years to come.

The Meaning of “Low” Value Speech

The second pressing free speech issue concerns the scope of “low” value speech. In recent years, the Supreme Court has taken a narrow view of the low value concept, suggesting that, in order for a category of speech to fall within that concept, there has to have been a long history of government regulation of the category in question. This is true, for example, of such low value categories as defamation, obscenity, and threats. An important question for the future is whether the Court will adhere to this approach.

The primary justification for the Court’s insistence on a history of regulation is that this limits the discretion of the justices to pick-and-choose which categories of expression should be deemed to have only low First Amendment value. A secondary justification for the Court’s approach is that a history of regulation of a category of expression provides some basis in experience for evaluating the possible effects – and dangers – of declaring a new category of speech to have only low First Amendment value.

Why does this doctrine matter? To cite one illustration, under the Court’s current approach, so-called “hate speech” – speech that expressly denigrates individuals on the basis of such characteristics as race, religion, gender, national origin, and sexual orientation – does not constitute low value speech because it has not historically been subject to regulation. As a result, except in truly extraordinary circumstances, such expression cannot be regulated consistent with the First Amendment. Almost every other nation allows such expression to be regulated and, indeed, prohibited, on the theory that it does not further the values of free expression and is incompatible with other fundamental values of society.

Similarly, under the Court’s approach to low value speech it is unclear whether civil or criminal actions for “invasion of privacy” can be reconciled with the First Amendment. For example, can an individual be punished for distributing on the Internet “private” information about other persons without their consent? Suppose, for example, an individual posts naked photos of a former lover on the Internet. Is that speech protected by the First Amendment, or can it be restricted as a form of “low” value speech? This remains an unresolved question.

Leaks of Classified Information

The Supreme Court has held that the government cannot constitutionally prohibit the publication of classified information unless it can demonstrate that the publication or distribution of that information will cause a clear and present danger of grave harm to the national security. New York Times v. United States (The “Pentagon Papers” case) (1971). At the same time, though, the Court has held that government employees who gain access to such classified information can be restricted in their unauthorized disclosure of that information. Snepp v. United States (1980). It remains an open question, however, whether a government employee who leaks information that discloses an unconstitutional, unlawful, or unwise classified program can be punished for doing so. This issue has been raised by a number of recent incidents, including the case of Edward Snowden. At some point in the future, the Court will have to decide whether and to what extent the actions of government leakers like Edward Snowden are protected by the First Amendment.

I like Professor Stone’s list of important issues. I think speech about elections, including speech that costs money, must remain protected, whether it’s published by individuals, nonprofit corporations, labor unions, media corporations, or nonmedia business corporations. (Direct contributions to candidates, as opposed to independent speech about them, can be restricted, as the Court has held.) And I think restrictions on “hate speech” should remain unconstitutional. But I agree these are likely to be heavily debated issues in the coming years. I’d like to add three more issues as well.

Professional-Client Speech

Many professionals serve their clients by speaking. Psychotherapists try to help their patients by talking with them. Doctors make diagnoses, offer predictions, and recommend treatments. Lawyers give legal advice; financial planners, financial advice. Some of these professionals also do things (such as prescribe drugs, perform surgeries, or file court documents that have legal effect). But much of what they do is speak.

Yet the law heavily regulates such speakers. It bars people from giving any legal, medical, psychiatric, or similar advice unless they first get licenses (which can take years and hundreds of thousands of dollars’ worth of education to get)—though the government couldn’t require a license for people to become journalists or authors. The law lets clients sue professionals for malpractice, arguing that the professionals’ opinions or predictions proved to be “unreasonable” and harmful, though similar lawsuits against newspapers or broadcasters would be unconstitutional.

And the law sometimes forbids or compels particular speech by these professionals. Some states ban psychiatrists from offering counseling aimed at changing young patients’ sexual orientation. Florida has restricted doctors’ questioning their patients about whether the patients own guns. Many states, hoping to persuade women not to get abortions, require doctors to say certain things or show certain things to women who are seeking abortions. The federal government has tried to punish doctors who recommend that their patients use medical marijuana (which is illegal under federal law, but which can be gotten in many states with the doctor’s recommendation).

When are these laws constitutional? Moreover, if there is a First Amendment exception that allows such regulations of professional-client speech, which professions does it cover? What about, for instance, tour guides, fortunetellers, veterinarians, or diet advisors? Courts are only beginning to confront the First Amendment implications of these sorts of restrictions, and the degree to which the government’s interest in protecting clients—and in preventing behavior that the government sees as harmful—can justify restricting professional-client speech.

Crime-Facilitating Speech

Some speech contains information that helps people commit crimes, or get away with committing crimes. Sometimes this is general information, for instance about how bombs are made, how locks can be picked, how deadly viruses can be created, how technological protections for copyrighted works can be easily evaded, or how a contract killer can get away with his crime.

Sometimes this is specific information, such as the names of crime witnesses that criminals might want to silence, the location of police officers whom criminals might want to avoid, or the names of undercover officers or CIA agents. Indeed, sometimes this can be as familiar as people flashing lights to alert drivers that a police officer is watching; people are occasionally prosecuted for this, because they are helping others get away with speeding.

Sometimes this speech is said specifically with the purpose of promoting crime—but sometimes it is said for other purposes: consider chemistry books that talk about explosives; newspaper articles that mention people’s names so the readers don’t feel anything is being concealed; or novels that accurately describe crimes just for entertainment. And sometimes it is said for political purposes, for instance when someone describes how easy it is to evade copyright law or proposed laws prohibiting 3-D printing of guns, in trying to explain why those laws need to be rejected.

Surprisingly, the Supreme Court has never explained when such speech can be restricted. The narrow incitement exception, which deals with speech that aims to persuade people to commit imminent crimes, is not a good fit for speech that, deliberately or not, informs people about how to commit crimes at some point in the future. This too is a field that the Supreme Court will likely have to address in coming decades.

“Hostile Environment Harassment” Rules

Finally, some government agencies, courts, and universities have reasoned that the government may restrict speech that sufficiently offends employees, students, or business patrons based on race, religion, sex, sexual orientation, and the like. Here’s how the theory goes: Laws ban discrimination based on such identity traits in employment, education, and public accommodations. And when speech is “severe or pervasive” enough to create a “hostile or offensive environment” based on those traits, such speech becomes a form of discrimination. Therefore, the argument goes, a wide range of speech—such as display of Confederate flags, unwanted religious proselytizing, speech sharply criticizing veterans, speech suggesting that Muslims are disloyal, display of sexually suggestive materials, sexually-themed humor, sex-based job titles (such as “foreman” or “draftsman”), and more—can lead to lawsuits.

Private employers are paying attention, and restricting such speech by their employees. Universities are enacting speech codes restricting such speech. Even speech in restaurants and other public places, whether put up by the business owner or said by patrons, can lead to liability for the owner. And this isn’t limited to offensive speech said to a particular person who doesn’t want to hear it. Even speech posted on the wall or overheard in the lunchroom can lead to liability, and would thus be suppressed by “hostile environment” law.

To be sure, private employers and business owners aren’t bound by the First Amendment, and are thus generally free to restrict such speech on their property. And even government employers and enterprises generally have broad latitude to control what is said on their property (setting aside public universities, which generally have much less such latitude). But here the government is pressuring all employers, universities, and businesses to impose speech codes, by threatening liability on those who don’t impose such codes. And that government pressure is subject to First Amendment scrutiny.

Some courts have rejected some applications of this “hostile environment” theory on First Amendment grounds; others have upheld other applications. This too is something the Supreme Court will have to consider.

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Legal Dictionary

The Law Dictionary for Everyone

Freedom of Speech

Freedom of speech is a person’s right to speak his or her own opinions, beliefs, or ideas, without having to fear that the government will retaliate against him, restrict him, or censor him in any way. The term “freedom of expression” is often used interchangeably, though the “expression” in this sense has more to do with the way in which the message is being communicated (i.e. via a painting, a song, an essay, etc.). The concept of freedom of speech dates back to a time long before the Constitution was drafted, potentially as far back as Athens in 5th or 6th centuries, B.C. To explore this concept, consider the following freedom of speech definition.

Definition of Freedom of Speech

  • The right to express your beliefs, ideas, and opinions without the fear of governmental reprisal or censorship .

5th or 6th Century B.C.             Ancient Greece

1780s                                       America

What is Freedom of Speech

Freedom of speech is the right afforded to a person to be able to speak his or her mind without fear that the government will censor or restrict what they have to say, or will retaliate against them for expressing himself. People are often confused by this concept, however, thinking that they can say anything that pops into their heads without repercussion. Just because you are allowed to say whatever you want does not mean that you will not suffer consequences as a result – it just means that the government cannot violate your right to do so.

The U.S. has many laws that place limits on speech and other forms of expression, which may be seen as harsh restrictions. These include prohibitions against defamation , slander , copyright violations, and trade secrets, amongst others. American philosopher Joel Feinberg posited what is known as the “offense principle,” which works to prohibit speech that is clearly offensive, or which can harm society as a whole, or a group in particular, such as racial hate speech , or hate speech aimed at someone’s religion.

Different countries have different rules insofar as freedom of speech is concerned, with some countries’ governments becoming more involved than other governments in the affairs of their citizens. Communist countries like China are often in the news for blocking their citizens’ access to the internet, and restricting their ability to both read and express ideas and beliefs of which their government does not approve. Here in the United States, examples of freedom of speech include criticisms against the government, and the promotion of ideas or beliefs that others might find to be controversial. In the U.S., these kinds of statements are allowed, within the constraints of the “offense principle,” or the “harm principle.”

Freedom of Speech Amendment

The concept of freedom of speech came into being in the United States back in the 1780s, when Anti-Federalists, like Thomas Jefferson and Patrick Henry, expressed their concerns that the federal government could eventually become too powerful. To keep the government in check, the Bill of Rights was drafted, which gave us, among other guarantees, freedom of speech, as detailed in the First Amendment to the U.S. Constitution, which can also be considered the Freedom of Speech Amendment :

“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.”

In addition to offering citizens protection from government interference in the expression of their ideas, the Freedom of Speech Amendment also them with the freedom to exercise one’s religion free from persecution. This is known as the Free Exercise Clause . Under this clause , citizens are permitted to adopt any religion they choose, and to take part in the rituals that the religion dictates.

Similarly, the Establishment Clause prevents the government from establishing one official religion that the country’s citizens all must follow. It also prevents the government from developing a preference for, or promoting one religion over another, religion over the lack of religion, or non-religion over religion.

In short, the Constitution guarantees that all people may worship who or how they may, but the federal government has no say in the matter, and may not adopt an official stance. There has been some misunderstanding about this “Separation of Church and State” clause, as it does not prohibit people from expressing their religious preferences in public, but only prevents a governmental entity from promoting any religion over another.

Freedom of the press, which allows publications to print opinions free of governmental censorship, is also permitted under the Freedom of Speech Amendment. Additionally, those who wish to gather in protest against the government are permitted, under the First Amendment, to “assemble peaceably,” which is why protests are permitted on public property, so long as they remain peaceful.

Freedom of Speech Quotes

Throughout time, people have craved, even when it was denied them, the right to freely express themselves. Freedom of speech quotes have survived centuries, to be used again and again, as people fight for this basic human right. What follows are ten great examples of freedom of speech quotes, wherein folks have either defended the policy as is, or have defended the laws that keep freedom of speech in check.

“If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.” – Noam Chomsky

“Freedom of speech is useless without freedom of thought.” – Spiro Agnew

“Without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty, without freedom of speech.” – Benjamin Franklin

“There has to be a cut-off somewhere between the freedom of expression and a graphically explicit free-for-all.” – E.A. Bucchianeri

 “For if men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and, dumb and silent we may be led, like sheep, to the slaughter.” – George Washington

“Those who make conversations impossible, make escalation inevitable.” – Stefan Molyneux

“Freedom of speech is a guiding rule, one of the foundations of democracy , but at the same time, freedom does not imply anarchy , and the right to exercise free expression does not include the right to do unjustified harm to others.” – Raphael Cohen-Almagor

“Freedom of speech gives you the right to stay silent.” – Neil Gaiman

“Should freedom of speech include the freedom to tell lies? Who decides what is true and what is a lie? Should the young and impressionable be exposed to propaganda deliberately designed to make them hate others? If we deny the deniers the right to spread their venom, are we then putting our own right to free speech at risk? At which point does hate speech so directly provoke violence that it should be banned?” – Ted Gottfried

“Two things form the bedrock of any open society: freedom of expression and rule of law. If you don’t have those things, you don’t have a free country.” – Salman Rushdie

Freedom of Speech Examples in Legal Cases

More than inspirational freedom of speech quotes, the issue has inspired a number of court cases over the years. Some examples of freedom of expression and freedom of speech cases are discussed below in more detail:

Gitlow v. New York (1925)

In the first case to ever be tried by the American Civil Liberties Union, Benjamin Gitlow had been charged with criminal anarchy, after he printed the “Left Wing Manifesto” in his publication The Revolutionary Age . He defended the piece as being an historical analysis of the concept of communism, rather than acting as an advocate for the system. He was convicted upon the completion of his trial and was ordered to serve five to ten years in prison .

Gitlow appealed the conviction, and his appeal was granted, after he had already served two years at Sing Sing. He was released on bail , only to be re-incarcerated three years later when the Supreme Court upheld the original conviction.

The Court ultimately determined that publication of the “Left Wing Manifesto” was indeed a crime. Despite having served as a leader of the Communist Party in the late 1920s, Gitlow publicly rejected the party in 1939, having become an outspoken anti-communist in 1934, and he remained one of the leading opponents of communism until his death on July 19, 1965.

Brandenburg v. Ohio (1969)

In 1969, Ku Klux Klan leader, David Brandenburg, was convicted of criminal act, one of which was advocating “the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

This followed his participation in a 1964 Klan rally in Cincinnati, Ohio, which Brandenburg had asked a local reporter to cover. During the rally, Brandenburg made a speech against the government, claiming that the government was “suppressing the Caucasian race.”

The court convicted Brandenburg, fining him $1,000, and sentencing him to one to ten years in prison. Brandenburg appealed, saying that his right to freedom of speech under the First and Fourteenth Amendments had been violated. His appeal was denied by both the Ohio First District Court of Appeal and the Supreme Court of Ohio, with the latter flat-out dismissing it without even offering an opinion .

This case led to the establishment of what is known as the Brandenburg Test , which is the standard by which potentially inflammatory speech is measured. Speech can only be prohibited if (1) it is “directed to inciting or producing imminent lawless action,” and (2) it is “likely to incite or produce such action.”

Related Legal Terms and Issues

  • Anti-Federalist – A political movement that opposed the creation of a stronger U.S. federal government, and opposed the ratification of the Constitution in 1787.
  • Defamation – An intentional false statement that harms a person’s reputation, or which decreases the respect or regard in which a person is held.
  • Copyright – A legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work.
  • Slander – An intentional false statement that harms a person’s reputation, or which decreases the respect or regard in which a person is held.
  • Trade Secrets – Designs, practices, processes, commercial methods, techniques, or information that is not generally known by others, which gives a business an advantage over competitors.

speech meaning in legal

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Freedom of Speech

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

A demonstration against restrictions on the sale of alcohol in the united states of America.Illustration showing a demonstration against restrictions on the sale of alcohol in the united states of America 1875. (Photo by: Universal History Archive/Universal Images Group via Getty Images)

Freedom of speech—the right to express opinions without government restraint—is a democratic ideal that dates back to ancient Greece. In the United States, the First Amendment guarantees free speech, though the United States, like all modern democracies, places limits on this freedom. In a series of landmark cases, the U.S. Supreme Court over the years has helped to define what types of speech are—and aren’t—protected under U.S. law.

The ancient Greeks pioneered free speech as a democratic principle. The ancient Greek word “parrhesia” means “free speech,” or “to speak candidly.” The term first appeared in Greek literature around the end of the fifth century B.C.

During the classical period, parrhesia became a fundamental part of the democracy of Athens. Leaders, philosophers, playwrights and everyday Athenians were free to openly discuss politics and religion and to criticize the government in some settings.

First Amendment

In the United States, the First Amendment protects freedom of speech.

The First Amendment was adopted on December 15, 1791 as part of the Bill of Rights—the first ten amendments to the United States Constitution . The Bill of Rights provides constitutional protection for certain individual liberties, including freedoms of speech, assembly and worship.

The First Amendment doesn’t specify what exactly is meant by freedom of speech. Defining what types of speech should and shouldn’t be protected by law has fallen largely to the courts.

In general, the First Amendment guarantees the right to express ideas and information. On a basic level, it means that people can express an opinion (even an unpopular or unsavory one) without fear of government censorship.

It protects all forms of communication, from speeches to art and other media.

Flag Burning

While freedom of speech pertains mostly to the spoken or written word, it also protects some forms of symbolic speech. Symbolic speech is an action that expresses an idea.

Flag burning is an example of symbolic speech that is protected under the First Amendment. Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the Reagan administration.

The U.S. Supreme Court , in 1990, reversed a Texas court’s conviction that Johnson broke the law by desecrating the flag. Texas v. Johnson invalidated statutes in Texas and 47 other states prohibiting flag burning.

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

  • Obscene material such as child pornography
  • Plagiarism of copyrighted material
  • Defamation (libel and slander)
  • True threats

Speech inciting illegal actions or soliciting others to commit crimes aren’t protected under the First Amendment, either.

The Supreme Court decided a series of cases in 1919 that helped to define the limitations of free speech. Congress passed the Espionage Act of 1917, shortly after the United States entered into World War I . The law prohibited interference in military operations or recruitment.

Socialist Party activist Charles Schenck was arrested under the Espionage Act after he distributed fliers urging young men to dodge the draft. The Supreme Court upheld his conviction by creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, they viewed draft resistant as dangerous to national security.

American labor leader and Socialist Party activist Eugene Debs also was arrested under the Espionage Act after giving a speech in 1918 encouraging others not to join the military. Debs argued that he was exercising his right to free speech and that the Espionage Act of 1917 was unconstitutional. In Debs v. United States the U.S. Supreme Court upheld the constitutionality of the Espionage Act.

Freedom of Expression

The Supreme Court has interpreted artistic freedom broadly as a form of free speech.

In most cases, freedom of expression may be restricted only if it will cause direct and imminent harm. Shouting “fire!” in a crowded theater and causing a stampede would be an example of direct and imminent harm.

In deciding cases involving artistic freedom of expression the Supreme Court leans on a principle called “content neutrality.” Content neutrality means the government can’t censor or restrict expression just because some segment of the population finds the content offensive.

Free Speech in Schools

In 1965, students at a public high school in Des Moines, Iowa , organized a silent protest against the Vietnam War by wearing black armbands to protest the fighting. The students were suspended from school. The principal argued that the armbands were a distraction and could possibly lead to danger for the students.

The Supreme Court didn’t bite—they ruled in favor of the students’ right to wear the armbands as a form of free speech in Tinker v. Des Moines Independent School District . The case set the standard for free speech in schools. However, First Amendment rights typically don’t apply in private schools.

What does free speech mean?; United States Courts . Tinker v. Des Moines; United States Courts . Freedom of expression in the arts and entertainment; ACLU .

speech meaning in legal

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What is the compelled speech doctrine?

The compelled speech doctrine, generally bars the government from compelling people to express things they do not want to say.

A staff member looking at a rare, original copy of the Bill of Rights at the National Constitution Center in Philadelphia.

By Charlie Savage

  • Dec. 5, 2022

At the heart of the case the Supreme Court is hearing on Monday is a First Amendment principle that the government cannot force people to express ideas against their will, and how it applies to a website maker who wants to be able to sell wedding site services to heterosexual couples but not same-sex couples — despite a Colorado anti-discrimination law.

Under what is known as the compelled speech doctrine, the First Amendment’s free speech protections extend beyond generally keeping the government from suppressing people from saying what they want: It also generally bars the government from compelling people to express things they do not want to say.

In a classic example, the Supreme Court struck down requirements that public school students salute the American flag and recite the Pledge of Allegiance.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein,” Justice Robert Jackson wrote in the 1943 decision.

But the court has also set limits, especially in commercial or professional settings, such as upholding requirements that certain types of advertisements include various factual disclosures.

The case on Monday centers on a Colorado law that bars businesses from discriminating on the basis of sexual orientation and whether it violates the First Amendment by compelling a website designer who opposes gay marriage because of her religious beliefs to provide services to same-sex couples if her company sells wedding site services to opposite-sex couples.

One question raised by the dispute is what counts as speech. The designer, Lorie Smith, argues that the law forces her to implicitly express support for unions she disagrees with. Colorado, however, has argued that the law itself regulates only sales, not the things being sold, and said the mere act of selling things is not expressive conduct.

If the justices conclude that selling wedding website services to same-sex couples amounts to speech, it would raise a second question: whether the circumstances — where the state is trying to ensure equal access to commercially available goods and services — makes this dispute fall into the zone of commercial or professional settings where precedents have said the First Amendment can tolerate some regulation of speech.

Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” More about Charlie Savage

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SPEECH. A formal discourse in public.      2. The liberty of speech is guaranteed to members of the legislature, to counsel in court in debate.      3. The reduction of a speech to writing and its publication is a libel, if the matter contained in it is libelous; and the repetition of it upon occasions not warranted by law, when the matter is slanderous, will be slander and. tho character of the speaker will be no protection to him from an action. 1 M. & S. 273; 1 Esp. C. 226 Bouv. Inst. Index, h.t. See Debate; Liberty of speech.

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First Amendment :

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.

Although public discussion of political affairs is at the core of the First Amendment , the guarantees of speech and press are broader. “We do not accede to appellee’s suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right.” 1 Footnote Winters v. New York, 333 U.S. 507, 510 (1948) . Illustrative of the general observation is the fact that “[m]usic, as a form of expression and communication, is protected under the First Amendment .” Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) . Nude dancing is also. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 564 (1991) . The right to impart and to receive “information and ideas, regardless of their social worth . . . is fundamental to our free society.” 2 Footnote Stanley v. Georgia, 394 U.S. 557, 564 (1969) . Indeed, it is primarily with regard to the entertaining function of expression that the law of obscenity is concerned, as the Court has rejected any concept of “ideological” obscenity. 3 Footnote Winters v. New York, 333 U.S. 507 (1948) ; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ; Commercial Pictures Corp. v. Regents, 346 U.S. 587 (1954) ; Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959) . The last case involved the banning of the movie Lady Chatterley’s Lover on the ground that it dealt too sympathetically with adultery. “It is contended that the State’s action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.” Id. at 688–89 . However, this function is not the reason that obscenity is outside the protection of the First Amendment , although the Court has never really been clear about what that reason is.

Adjudication over the constitutional law of obscenity began in Roth v. United States , 4 Footnote 354 U.S. 476 (1957) . Heard at the same time and decided in the same opinion was Alberts v. California , involving, of course, a state obscenity law. The Court’s first opinion in the obscenity field was Butler v. Michigan, 352 U.S. 380 (1957) , considered infra . Earlier the Court had divided four-to-four and thus affirmed a state court judgment that Edmund Wilson’s Memoirs of Hecate County was obscene. Doubleday & Co. v. New York , 335 U.S. 848 (1948) . in which the Court in an opinion by Justice Brennan settled in the negative the “dispositive question” “whether obscenity is utterance within the area of protected speech and press.” 5 Footnote Roth v. United States, 354 U.S. 476, 481 (1957) . Justice Brennan later changed his mind on this score, arguing that, because the Court had failed to develop a workable standard for distinguishing the obscene from the non-obscene, regulation should be confined to the protection of children and non-consenting adults. See Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) . The Court then undertook a brief historical survey to demonstrate that “the unconditional phrasing of the First Amendment was not intended to protect every utterance.” All or practically all the states that ratified the First Amendment had laws making blasphemy or profanity or both crimes, and provided for prosecutions of libels as well. It was this history that had caused the Court in Beauharnais to conclude that “libelous utterances are not within the area of constitutionally protected speech,” and this history was deemed to demonstrate that “obscenity, too, was outside the protection intended for speech and press.” 6 Footnote 354 U.S. at 482–83 . The reference is to Beauharnais v. Illinois, 343 U.S. 250 (1952) . “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people . . . . All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” 7 Footnote 354 U.S. at 484 . There then followed the well-known passage from Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) . It was objected that obscenity legislation punishes because of incitation to impure thoughts and without proof that obscene materials create a clear and present danger of antisocial conduct. But because obscenity was not protected at all, such tests as clear and present danger were irrelevant. 8 Footnote 354 U.S. at 486 , also quoting Beauharnais v. Illinois, 343 U.S. 250, 266 (1952) .

“However,” Justice Brennan continued, “sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g. , in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press . . . . It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.” 9 Footnote 354 U.S. at 487, 488 . The standard that the Court thereupon adopted for the designation of material as unprotected obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 10 Footnote 354 U.S. at 489 . The Court defined material appealing to prurient interest as “material having a tendency to excite lustful thoughts,” and defined prurient interest as “a shameful or morbid interest in nudity, sex, or excretion.” 11 Footnote 354 U.S. at 487 n.20 . A statute defining “prurient” as “that which incites lasciviousness or lust” covers more than obscenity, the Court later indicated in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985) ; obscenity consists in appeal to “a shameful or morbid” interest in sex, not in appeal to “normal, healthy sexual desires.” Brockett involved a facial challenge to the statute, so the Court did not have to explain the difference between “normal, healthy” sexual desires and “shameful” or “morbid” sexual desires.

In the years after Roth , the Court struggled with many obscenity cases with varying degrees of success. The cases can be grouped topically, but, with the exception of those cases dealing with protection of children, 12 Footnote In Butler v. Michigan, 352 U.S. 380 (1957) , the Court unanimously reversed a conviction under a statute that punished general distribution of materials unsuitable for children. Protesting that the statute “reduce[d] the adult population of Michigan to reading only what is fit for children,” the Court pronounced the statute void. Narrowly drawn proscriptions for distribution or exhibition to children of materials which would not be obscene for adults are permissible, Ginsberg v. New York, 390 U.S. 629 (1968) , although the Court insists on a high degree of specificity. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968) ; Rabeck v. New York, 391 U.S. 462 (1968) . Protection of children in this context is concurred in even by those Justices who would proscribe obscenity regulation for adults. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113 (1973) (Justice Brennan dissenting). But children do have First Amendment protection and government may not bar dissemination of everything to them. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–14 (1975) (in context of nudity on movie screen). See also FCC v. Pacifica Foundation, 438 U.S. 726, 749–50 (1978) ; Pinkus v. United States, 436 U.S. 293, 296–98 (1978) . unwilling adult recipients, 13 Footnote Protection of unwilling adults was the emphasis in Rowan v. Post Office Dep’t, 397 U.S. 728 (1970) , which upheld a scheme by which recipients of objectionable mail could put their names on a list and require the mailer to send no more such material. But, absent intrusions into the home, FCC v. Pacifica Foundation, 438 U.S. 726 (1978) , or a degree of captivity that makes it impractical for the unwilling viewer or auditor to avoid exposure, government may not censor content, in the context of materials not meeting constitutional standards for denomination as pornography, to protect the sensibilities of some. It is up to offended individuals to turn away. Erznoznik v. City of Jacksonville, 422 U.S. 205, 208–12 (1975) . But see Pinkus v. United States, 436 U.S. 293, 300 (1978) (jury in determining community standards must include both “'sensitive’ and ‘insensitive’ persons” in the community, but may not “focus[ ] upon the most susceptible or sensitive members when judging the obscenity of materials . . .” ). and procedure, 14 Footnote The First Amendment requires that procedures for suppressing distribution of obscene materials provide for expedited consideration, for placing the burden of proof on government, and for hastening judicial review. Additionally, Fourth Amendment search and seizure law has been suffused with First Amendment principles, so that the law governing searches for and seizures of allegedly obscene materials is more stringent than in most other areas. Marcus v. Search Warrant, 367 U.S. 717 (1961) ; A Quantity of Books v. Kansas, 378 U.S. 205 (1964) ; Heller v. New York, 413 U.S. 483 (1973) ; Roaden v. Kentucky, 413 U.S. 496 (1973) ; Lo-Ji Sales v. New York, 442 U.S. 319 (1979) ; see also Walter v. United States, 447 U.S. 649 (1980) . Scienter—that is, knowledge of the nature of the materials—is a prerequisite to conviction, Smith v. California, 361 U.S. 147 (1959) , but the prosecution need only prove the defendant knew the contents of the material, not that he knew they were legally obscene. Hamling v. United States, 418 U.S. 87, 119–24 (1974) . See also Vance v. Universal Amusement Co., 445 U.S. 308 (1980) (public nuisance injunction of showing future films on basis of past exhibition of obscene films constitutes impermissible prior restraint); McKinney v. Alabama, 424 U.S. 669 (1976) (criminal defendants may not be bound by a finding of obscenity of materials in prior civil proceeding to which they were not parties). None of these strictures applies, however, to forfeitures imposed as part of a criminal penalty. Alexander v. United States, 509 U.S. 544 (1993) (upholding RICO forfeiture of the entire adult entertainment book and film business of an individual convicted of obscenity and racketeering offenses). Justice Kennedy, dissenting in Alexander , objected to the “forfeiture of expressive material that had not been adjudged to be obscene.” Id. at 578 . these cases are best explicated chronologically.

Manual Enterprises v. Day 15 Footnote 370 U.S. 478 (1962) . upset a Post Office ban upon the mailing of certain magazines addressed to homosexual audiences, but resulted in no majority opinion of the Court. Nor did a majority opinion emerge in Jacobellis v. Ohio , which reversed a conviction for exhibiting a motion picture. 16 Footnote 378 U.S. 184 (1964) . Without opinion, citing Jacobellis , the Court reversed a judgment that Henry Miller’s Tropic of Cancer was obscene. Grove Press v. Gerstein, 378 U.S. 577 (1964) . Jacobellis is best known for Justice Stewart’s concurrence, contending that criminal prohibitions should be limited to “hard-core pornography.” The category “may be indefinable,” he added, but “I know it when I see it, and the motion picture involved in this case is not that.” Id. at 197 . The difficulty with this visceral test is that other members of the Court did not always “see it” the same way; two years later, for example, Justice Stewart was on opposite sides in two obscenity decisions decided on the same day. A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U.S. 413 (1966) (concurring on basis that book was not obscene); Mishkin v. New York, 383 U.S. 502, 518 (1966) (dissenting from finding that material was obscene). Chief Justice Warren’s concurrence in Roth 17 Footnote Roth v. United States, 354 U.S. 476, 494 (1957) . was adopted by a majority in Ginzburg v. United States , 18 Footnote 383 U.S. 463 (1966) . Pandering remains relevant in pornography cases. Splawn v. California, 431 U.S. 595 (1977) ; Pinkus v. United States, 436 U.S. 293, 303–04 (1978) . in which Justice Brennan for the Court held that in “close” cases borderline materials could be determined to be obscene if the seller “pandered” them in a way that indicated he was catering to prurient interests. The same five-Justice majority, with Justice Harlan concurring, the same day affirmed a state conviction of a distributor of books addressed to a sado-masochistic audience, applying the “pandering” test and concluding that material could be held legally obscene if it appealed to the prurient interests of the deviate group to which it was directed. 19 Footnote Mishkin v. New York, 383 U.S. 502 (1966) . See id. at 507–10 for discussion of the legal issue raised by the limited appeal of the material. The Court relied on Mishkin in Ward v. Illinois, 431 U.S. 767, 772 (1977) . Unanimity was shattered, however, when on the same day the Court held that Fanny Hill , a novel at that point 277 years old, was not legally obscene. 20 Footnote A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U.S. 413 (1966) . The prevailing opinion again restated the Roth tests that, to be considered obscene, material must (1) have a dominant theme in the work considered as a whole that appeals to prurient interest, (2) be patently offensive because it goes beyond contemporary community standards, and (3) be utterly without redeeming social value. 21 Footnote 383 U.S. at 418 . On the precedential effect of the Memoirs plurality opinion, see Marks v. United States, 430 U.S. 188, 192–94 (1977) .

After the divisions engendered by the disparate opinions in the three 1966 cases, the Court over the next several years submerged its differences by per curiam dispositions of nearly three dozen cases, in all but one of which it reversed convictions or civil determinations of obscenity. The initial case was Redrup v. New York , 22 Footnote 386 U.S. 767 (1967) . in which, after noting that the cases involved did not present special questions requiring other treatment, such as concern for juveniles, protection of unwilling adult recipients, or proscription of pandering, 23 Footnote 386 U.S. at 771 . the Court succinctly summarized the varying positions of the seven Justices in the majority and said: “[w]hichever of the constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand . . . .” 24 Footnote 386 U.S. at 770–71 . The majority was thus composed of Chief Justice Warren and Justices Black, Douglas, Brennan, Stewart, White, and Fortas. And so things went for several years. 25 Footnote See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 82–83 & n.8 (1973) (Justice Brennan dissenting) (describing Redrup practice and listing 31 cases decided on the basis of it).

Changing membership on the Court raised increasing speculation about the continuing vitality of Roth ; it seemed unlikely the Court would long continue its Redrup approach. 26 Footnote See United States v. Reidel, 402 U.S. 351 (1971) (federal prohibition of dissemination of obscene materials through the mails is constitutional); United States v. Thirty-seven Photographs, 402 U.S. 363 (1971) (customs seizures of obscene materials from baggage of travelers are constitutional). In Grove Press v. Maryland State Bd. of Censors, 401 U.S. 480 (1971) , a state court determination that the motion picture “I Am Curious (Yellow)” was obscene was affirmed by an equally divided Court, Justice Douglas not participating. And Stanley v. Georgia, 394 U.S. 557, 560–64, 568 (1969) , had insisted that Roth remained the governing standard. The change when it occurred strengthened the powers of government, federal, state, and local, to outlaw or restrictively regulate the sale and dissemination of materials found objectionable, and developed new standards for determining which objectionable materials are legally obscene.

At the end of the October 1971 Term, the Court requested argument on the question whether the display of sexually oriented films or of sexually oriented pictorial magazines, when surrounded by notice to the public of their nature and by reasonable protection against exposure to juveniles, was constitutionally protected. 27 Footnote Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ; Alexander v. Virginia , 408 U.S. 921 (1972) . By a five-to-four vote the following Term, the Court in Paris Adult Theatre I v. Slaton adhered to the principle established in Roth that obscene material is not protected by the First and Fourteenth Amendment s even if access is limited to consenting adults. 28 Footnote 413 U.S. 49 (1973) . Chief Justice Burger for the Court observed that the states have wider interests than protecting juveniles and unwilling adults from exposure to pornography; legitimate state interests, effectuated through the exercise of the police power, exist in protecting and improving the quality of life and the total community environment, in improving the tone of commerce in the cities, and in protecting public safety. It does not matter that the states may be acting on the basis of unverifiable assumptions in arriving at the decision to suppress the trade in pornography; the Constitution does not require in the context of the trade in ideas that governmental courses of action be subject to empirical verification any more than it does in other fields. Nor does the Constitution embody any concept of laissez faire, or of privacy, or of Millsean “free will,” that curbs governmental efforts to suppress pornography. 29 Footnote 413 U.S. at 57, 60–62, 63–64, 65–68 . Delivering the principal dissent, Justice Brennan argued that the Court’s Roth approach allowing the suppression of pornography was a failure, that the Court had not and could not formulate standards by which protected materials could be distinguished from unprotected materials, and that the First Amendment had been denigrated through the exposure of numerous persons to punishment for the dissemination of materials that fell close to one side of the line rather than the other, but more basically by deterrence of protected expression caused by the uncertainty. Id. at 73 . “I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendment s prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” Id. at 113 . Justices Stewart and Marshall joined this opinion; Justice Douglas dissented separately, adhering to the view that the First Amendment absolutely protected all expression. Id. at 70 .

In Miller v. California , 30 Footnote 413 U.S. 15 (1973) . the Court prescribed standards by which unprotected pornographic materials were to be identified. Because of the inherent dangers in undertaking to regulate any form of expression, laws to regulate pornography must be carefully limited; their scope is to be confined to materials that “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” 31 Footnote Miller v. California, 413 U.S. 15, 27 (1973) . The Court stands ready to read into federal statutes the standards it has formulated. United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7 (1973) (Court is prepared to construe statutes proscribing materials that are “obscene,” “lewd,” “lascivious,” “filthy,” “indecent,” and “immoral” as limited to the types of “hard core” pornography reachable under the Miller standards). For other cases applying Miller standards to federal statutes, see Hamling v. United States, 418 U.S. 87, 110–16 (1974) (use of the mails); United States v. Orito, 413 U.S. 139 (1973) (transportation of pornography in interstate commerce). The Court’s insistence on specificity in state statutes, either as written by the legislature or as authoritatively construed by the state court, appears to have been significantly weakened, in fact if not in enunciation, in Ward v. Illinois, 431 U.S. 767 (1977) . The law “must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” 32 Footnote Miller v. California , 413 U.S. at 24 . The standard that a work must be “utterly without redeeming social value” before it may be suppressed was disavowed and discarded. In determining whether material appeals to a prurient interest or is patently offensive, the trier of fact, whether a judge or a jury, is not bound by a hypothetical national standard but may apply the local community standard where the trier of fact sits. 33 Footnote It is the unprotected nature of obscenity that allows this inquiry; offensiveness to local community standards is, of course, a principle completely at odds with mainstream First Amendment jurisprudence. See, e.g. , Texas v. Johnson, 491 U.S. 397 (1989) ; R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) . Prurient interest and patent offensiveness, the Court indicated, “are essentially questions of fact.” 34 Footnote 413 U.S. at 30–34 . “A juror is entitled to draw on his knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law.” Hamling v. United States, 418 U.S. 87, 104 (1974) . The holding does not compel any particular circumscribed area to be used as a “community.” In federal cases, it will probably be the judicial district from which the jurors are drawn, id. at 105–106 . Indeed, the jurors may be instructed to apply “community standards” without any definition being given of the “community.” Jenkins v. Georgia, 418 U.S. 153, 157 (1974) . In a federal prosecution for use of the mails to transmit pornography, the fact that the legislature of the state within which the transaction takes place has abolished pornography regulation except for dealings with children does not preclude permitting the jurors in the federal case to make their own definitions of what is offensive to contemporary community standards; they may be told of the legislature’s decision but they are not bound by it. Smith v. United States, 431 U.S. 291 (1977) . By contrast, the third or “value” prong of the Miller test is not subject to a community standards test; instead, the appropriate standard is “whether a reasonable person would find [literary, artistic, political, or scientific] value in the material, taken as a whole.” 35 Footnote Pope v. Illinois, 481 U.S. 497, 500–01 (1987) .

The Court in Miller reiterated that it was not permitting an unlimited degree of suppression of materials. Only “hard core” materials were to be deemed without the protection of the First Amendment , and the Court’s idea of the content of “hard core” pornography was revealed in its examples: “(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” 36 Footnote Miller v. California, 413 U.S. 15, 25 (1973) . Quoting Miller 's language in Hamling v. United States, 418 U.S. 87, 114 (1974) , the Court reiterated that it was only “hard-core” material that was unprotected. “While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is ‘patently offensive’ within the meaning of the obscenity test set forth in the Miller cases.” Referring to this language in Ward v. Illinois, 431 U.S. 767 (1977) , the Court upheld a state court’s power to construe its statute to reach sadomasochistic materials not within the confines of the Miller language. Subsequently, the Court held that a publication was not obscene if it “provoked only normal, healthy sexual desires.” To be obscene it must appeal to “a shameful or morbid interest in nudity, sex, or excretion.” 37 Footnote Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985) . The Court has also indicated that obscenity is not be limited to pictures; books containing only descriptive language may be suppressed. 38 Footnote Kaplan v. California, 413 U.S. 115 (1973) .

First Amendment values, the Court stressed in Miller , “are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” 39 Footnote 413 U.S. at 25 . But the Court had conferred on juries as triers of fact the determination, based upon their understanding of community standards, whether material was “patently offensive.” Did not this virtually immunize these questions from appellate review? In Jenkins v. Georgia , 40 Footnote 418 U.S. 153 (1974) . the Court, while adhering to the Miller standards, stated that “juries [do not] have unbridled discretion in determining what is ‘patently offensive.’” Miller was intended to make clear that only “hard-core” materials could be suppressed and this concept and the Court’s descriptive itemization of some types of hardcore materials were “intended to fix substantive constitutional limitations, deriving from the First Amendment , on the type of material subject to such a determination.” The Court’s own viewing of the motion picture in question convinced it that “[n]othing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the ‘patently offensive’ element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment.” 41 Footnote 418 U.S. at 161 . The film at issue was Carnal Knowledge . But, in a companion case, the Court found that a jury determination of obscenity “was supported by the evidence and consistent with” the standards. 42 Footnote Hamling v. United States, 418 U.S. 87 (1974) . In Smith v. United States, 431 U.S. 291, 305–06 (1977) , the Court explained that jury determinations in accordance with their own understanding of the tolerance of the average person in their community are not unreviewable. Judicial review would pass on (1) whether the jury was properly instructed to consider the entire community and not simply the members’ own subjective reaction or the reactions of a sensitive or of a callous minority, (2) whether the conduct depicted fell within the examples specified in Miller , (3) whether the work lacked serious literary, artistic, political, or scientific value, and (4) whether the evidence was sufficient. The Court indicated that the value test of Miller “was particularly amenable to judicial review.” The value test is not to be measured by community standards, the Court later held in Pope v. Illinois, 481 U.S. 497 (1987) , but instead by a “reasonable person” standard. An erroneous instruction on this score, however, may be “harmless error.” Id. at 503 .

The decisions from the Paris Adult Theatre and Miller era were rendered by narrow majorities, 43 Footnote For other five-to-four decisions of the era, see Marks v. United States, 430 U.S. 188 (1977) ; Smith v. United States, 431 U.S. 291 (1977) ; Splawn v. California, 431 U.S. 595 (1977) ; and Ward v. Illinois, 431 U.S. 767 (1977) . but nonetheless have guided the Court since. In addition, the Court’s willingness to allow some regulation of non-obscene but sexually explicit or “indecent” expression reduces the importance (outside the criminal area) of whether material is classified as obscene.

Even as to materials falling within the constitutional definition of obscene, the Court has recognized a limited private, protected interest in possession within the home, 44 Footnote Stanley v. Georgia, 394 U.S. 557 (1969) . unless those materials constitute child pornography. Stanley v. Georgia was an appeal from a state conviction for possession of obscene films discovered in appellant’s home by police officers armed with a search warrant for other items which were not found. The Court reversed, holding that the mere private possession of obscene materials in the home cannot be made a criminal offense. The Constitution protects the right to receive information and ideas, the Court said, regardless of their social value, and “that right takes on an added dimension” in the context of a prosecution for possession of something in one’s own home. “For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.” 45 Footnote 394 U.S. at 564 . Despite the unqualified assertion in Roth that obscenity was not protected by the First Amendment , the Court observed, it and the cases following were concerned with the governmental interest in regulating commercial distribution of obscene materials. Roth and the cases following that decision are not impaired by today’s decision, the Court insisted, 46 Footnote 394 U.S. at 560–64, 568 . but in its rejection of each of the state contentions made in support of the conviction the Court appeared to be rejecting much of the basis of Roth . First, there is no governmental interest in protecting an individual’s mind from the effect of obscenity. Second, the absence of ideological content in the films was irrelevant, since the Court will not draw a line between transmission of ideas and entertainment. Third, there is no empirical evidence to support a contention that exposure to obscene materials may incite a person to antisocial conduct; even if there were such evidence, enforcement of laws proscribing the offensive conduct is the answer. Fourth, punishment of mere possession is not necessary to punishment of distribution. Fifth, there was little danger that private possession would give rise to the objections underlying a proscription upon public dissemination, exposure to children and unwilling adults. 47 Footnote 394 U.S. at 565–68 .

Stanley 's broad rationale has been given a restrictive reading, and the holding has been confined to its facts. Any possible implication that Stanley was applicable outside the home and recognized a right to obtain pornography or a right in someone to supply it was soon dispelled. 48 Footnote Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65–68 (1973) . Transportation of unprotected material for private use may be prohibited, United States v. Orito, 413 U.S. 139 (1973) , and the mails may be closed, United States v. Reidel, 402 U.S. 351 (1971) , as may channels of international movement, United States v. Thirty-seven Photographs, 402 U.S. 363 (1971) ; United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973) . The Court has consistently rejected Stanley 's theoretical underpinnings, upholding morality-based regulation of the behavior of consenting adults. 49 Footnote Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65–70 (1973) (commercial showing of obscene films to consenting adults); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (regulation of non-obscene, nude dancing restricted to adults). Also, Stanley has been held inapplicable to possession of child pornography in the home, the Court determining that the state interest in protecting children from sexual exploitation far exceeds the interest in Stanley of protecting adults from themselves. 50 Footnote Osborne v. Ohio, 495 U.S. 103 (1990) . Apparently for this reason, a state’s conclusion that punishment of mere possession is a necessary or desirable means of reducing production of child pornography will not be closely scrutinized. 51 Footnote 495 U.S. at 109–10 .

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The Law Dictionary

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The Legalities Of Hate Speech

Often discussed on a variety of platforms, hate speech and the legalities associated with it can be a hotly debated topic. Hate speech is loosely defined by laypersons as any offensive speech targeted toward people based on race, religion , sexual orientation, or gender. Opinions about how such speech should be handled by legal authorities vary. Few seem to be familiar with the actual legalities of hate speech, and it is not uncommon for it to be confused with other crimes where hatred is believed to be a motivating factor.

Which Laws Govern Hate Speech?

In the United States, there are no laws against hate speech. Due to rights protected by the U.S. Constitution’s First Amendment , a person can say just about anything he or she wants to another person or group. By itself, such speech is allowed to take place without penalty under the law.

A person hurling insults, making rude statements, or disparaging comments about another person or group is merely exercising his or her right to free speech. This is true even if the person or group targeted by the speaker is a member of a protected class. According to U.S. law, such speech is fully permissible and is not defined as hate speech.

Under the First Amendment, American citizens have the legal right to say whatever they’d like to. While much ado is often made about so-called “hate speech”, no satisfactory definition for this type of speech exists within the confines of the law. Not to be confused with “hate crimes,” a person’s speech does not affect another person’s physical condition or personal property and is, therefore, not punishable by law.

Are There Any Exceptions?

There really aren’t any exceptions to this rule, but there are accompanying circumstances which can lead to a crime. For example, harsh words can feel threatening, and such a threat may result in criminal charges. Depending on the jurisdiction where the threat takes place, charges can range from a terrorist threat to harassment to criminal assault .

For example, a person who makes bigoted statements while threatening bodily harm to a person of the Muslim faith can be charged with a crime. Charges would not be brought about simply due to any insulting language used, but charges may be applied because it is illegal to make threats against a person. For the same reasons, this would also include inciting violence against a group being discriminated against. Again, it is not the speech that is deemed to be illegal, but rather what the speech is threatening or encouraging others to do.

It should further be noted that individuals employed by the Federal Government are not allowed to discriminate against any members of a protective class. Therefore, any speech representing hostility or disdain for a member of a protected class, may not be illegal but may result in the dismissal of the employee making such statements.

Members of a protected class are identified by:

  • Age (applies primarily to those aged 40 years and above)
  • Handicap (whether visibly apparent or not)
  • Veteran status
  • Country of origin (this includes a person’s citizenship status)

If allegations of hateful speech are proven, a person found guilty of discriminating against one of the above groups would not be legally charged with hateful speech but could be declared guilty of discrimination and summarily dismissed from work.

Should Hate Speech Be Illegal?

A 1969 U.S. Supreme Court case ruled it was perfectly legal for Clarence Brandenburg, a Ku Klux Klan member in Ohio, to speak in favor of violence toward minorities as long as he was not directly encouraging people to engage in violence or other activities that were against the law. So, while the court did not deem his speech to have broken the law, a line was drawn between speech supporting or favoring violence and speech that actually directly incites violence. The former is protected by law, but the latter is an actual crime.  

In 2011, the U.S. Supreme Court ruled against Westboro Baptist Church being punished by way of a civil judgment for actions many Americans deemed to be hateful. The church based in Topeka, Kansas, is known for showing up at the funerals of gay people and others whose lifestyles the church vehemently opposes, taunting and ridiculing grieving loved ones at the funeral services. They accomplish this by picketing outside with large signs displaying hateful rhetoric, as well as by shouting slurs and insults, and even by giving provocative media interviews using language mimicking what is displayed on their signs. Despite the public’s demands for local law enforcement to stop Westboro Baptist Church from spewing such offensive language and ideas, the Supreme Court insists that their right to free speech is fully protected under the law.

Some Americans have advocated in favor of the creation of hate speech laws. Resistance to the adoption of such stems from a failure to clearly define what hate speech actually is, though. Activists have also been challenged to clearly separate hate speech from free speech without infringing on a person’s right to the latter.

While the United States Constitution can be amended as it has been many times before, no one has yet been able to solve the difficulty of doing so as it applies to hate speech. Doing so would require taking away a person’s right to free speech. A single and solid definition of hate speech, which does not violate the First Amendment, continues to be difficult for courts to accept and probably will be for some time to come.

The Role of Hate Speech in Hate Crimes

A person’s speech can be used against them in establishing the occurrence of a hate crime. In some cases, it can be argued that a person’s offensive speech is literal evidence of a certain type of crime. For example, if a person is repeatedly called a racial slur, no crime has been committed. However, if the person is then assaulted by the person making those slurs, it can be argued that disdain for the person’s racial identity served as a motive for the crime against them as evidenced by the language used preceding or during the assault. If the assailant was found to be guilty and it is proven that their actions were motivated by bigotry, the offender could be charged with a hate crime.

Making sense of the difference between hate speech and hate crimes hearkens back to early childhood when we all learned about sticks and stones. Actions causing harm to person or property are a crime. Name-calling and degrading speech are not. Unless or until speech directly encourages or includes harm to a person’s body or property, it is protected as an American right.

Beyond the U.S.: Hate Speech Vs. Free Speech

Outside of the U.S., countries like Austria and Germany have strict laws against hate speech. Certain Neo-Nazi groups have found ways around anti-hate speech laws in those countries when it comes to disseminating information on the Internet. Using servers based in the United States, these groups have created websites filled with hateful rhetoric. Such sites would be illegal if associated with servers based in their home countries, but as they exist on American servers, they are completely protected by the First Amendment.

Russian citizens, in particular, have struggled with differentiating free speech from hateful speech. In less than a decade, multiple laws have passed making it difficult for Russian citizens to speak publicly, especially via social media, about any discontent with the country’s government or even with certain religious authorities, such as the Russian Orthodox Church. While Russia’s Constitution shuns censorship and claims to protect freedom of thought and expression, those espousing critical viewpoints may be subject to a fine, community service or prison.

Hate Speech is Perfectly Legal

To hate a person or group is not a crime in America. To voice one’s hatred is not a crime, either. Hate speech is very difficult to separate from mere opinion, and without a definition everyone can agree upon, words and statements may be interpreted by some as offensive while others may find the exact same speech perfectly acceptable and cite one’s freedom of expression.

If you still have questions about hate speech, including how it may be used in determining a hate crime, you may read more about the First Amendment or consult a civil rights attorney in your area.

This article contains general legal information but does not constitute professional legal advice for your particular situation. The Law Dictionary is not a law firm, and this page does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

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Supreme Court tackles social media and free speech

Nina Totenberg at NPR headquarters in Washington, D.C., May 21, 2019. (photo by Allison Shelley)

Nina Totenberg

In a major First Amendment case, the Supreme Court heard arguments on the federal government's ability to combat what it sees as false, misleading or dangerous information online.

ARI SHAPIRO, HOST:

At the Supreme Court today, a majority of the justices seemed highly skeptical of claims that federal officials may be broadly barred from contacts with social media platforms. At issue was a sweeping 5th Circuit Court of Appeals decision. That ruling blocked officials from the White House, the FBI, the CDC and other agencies from asking social media companies to remove certain content. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Five individuals and two Republican-dominated states claim that the government is violating the First Amendment by systematically pressuring social media companies to take down what the government sees as false and misleading information. The Biden administration counters that White House and agency officials are well within their rights to persuade social media companies about what they see as erroneous information about COVID-19 or foreign interference in an election or even election information about where to vote. Two justices who once worked in the White House - Brett Kavanaugh, a Trump appointee, and Elena Kagan, an Obama appointee - were the most outspoken about the long history of government contacts with media companies. Here's Kavanaugh.

(SOUNDBITE OF ARCHIVED RECORDING)

BRETT KAVANAUGH: I've experienced government press people throughout the federal government who regularly call up the media and berate them.

TOTENBERG: Justice Kagan echoed that sentiment.

ELENA KAGAN: Like Justice Kavanaugh, I've had some experience encouraging press...

KAGAN: ...To suppress their own speech. You just wrote a story that's filled with factual errors. Here are the 10 reasons why you shouldn't do that again. I mean, this happens literally thousands of times a day in the federal government.

TOTENBERG: She and Justice Barrett postulated that the FBI might contact social media companies to tell them that while they might not realize it, they've been posting information from a terrorist group aimed at secret recruitment. Louisiana's solicitor general, Benjamin Aguinaga, argued that when government officials contact social media companies, even encouraging, amounts to unconstitutional pressuring. That prompted this from Justice Barrett.

BENJAMIN AGUINAGA: I mean...

AMY CONEY BARRETT: Just plain, vanilla encouragement, or does it have to be some kind of, like, significant encouragement? - because encouragement would sweep in an awful lot.

TOTENBERG: Aguinaga, however, didn't have a clear line of differentiation, except to claim that pressuring print and other media outlets is different from pressuring social media platforms. What about publishing classified information, asked Justice Kavanaugh. Are you suggesting the government can't try to get that taken down? Or what about factual inaccuracies? Justice Jackson asked about matters of public safety. What if young people were being injured or killed, carrying out a new online fad that called for jumping out of windows? Couldn't the government legitimately ask platforms to take that down? When the Louisiana solicitor general fudged, Chief Justice Roberts followed up.

JOHN ROBERTS: Under my colleague's hypothetical, it was not necessarily eliminate viewpoints. It was to eliminate some game that is seriously harming children around the country. And they say, we encourage you to stop that.

AGUINAGA: Your honor, I agree. As a policy matter, it might be great for the government to be able to do that. But the moment that the government identifies an entire category of content that it wishes to not be in the modern public sphere, that is a First Amendment problem.

TOTENBERG: Several justices questioned the record in the case. Justice Kagan said she did not see even one item that supported barring government contacts. Justice Sotomayor put it this way.

SONIA SOTOMAYOR: I have such a problem with your brief, Counselor. You omit information that changes the context of some of your claims. You attribute things to people who it didn't happen to. I'm not sure how we get to prove direct injury in any way.

TOTENBERG: Representing the Biden administration today, Deputy Solicitor General Brian Fletcher took incoming fire, mainly from Justices Alito and Thomas. But he stuck to his contention that when the government seeks to persuade a social media platform to take down a post, that is an attempt at persuasion not coercion. Unlike some of his conservative colleagues, Justice Alito was skeptical of all aspects of the government's argument.

SAMUEL ALITO: There is constant pestering of Facebook and some of the other platforms, and they want to have regular meetings. They suggest rules that should be applied. And I thought, wow, I cannot imagine federal officials taking that approach to the print media.

TOTENBERG: Nina Totenberg, NPR News, Washington.

Copyright © 2024 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

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Michael Gove in the Commons

Gove faces legal action threats after suggesting Muslim groups are extremist

Community secretary’s new definition of extremism attracts criticism in parliament, including from Tory former minister

Michael Gove is facing threats of legal action after naming Muslim organisations that could fall foul of a new definition of extremism.

Amid free speech fears among Conservatives , the communities secretary told MPs that the advocacy groups Muslim Association of Britain (MAB), Mend and Cage were organisations with “Islamist orientation and beliefs” that could be included on a list of groups banned from access to public money, ministers and civil servants.

In response, the MAB and Mend have challenged Gove to repeat the allegations without parliamentary privilege so they can sue.

The Muslim Council of Britain (MCB), the UK’s biggest Muslim organisation, has consulted lawyers in anticipation of seeking a judicial review if banned from Whitehall and Westminster.

Gove also named the British National Socialist Movement and Patriotic Alternative as groups that promoted neo-Nazi ideology that would also be examined.

Gove told MPs: “Organisations such as the Muslim Association of Britain, which is the British affiliate of the Muslim Brotherhood, and other groups such as Cage and Mend give rise to concern for their Islamist orientation and beliefs. We will be holding these and other organisations to account to assess if they meet our definition of extremism, and will take action as appropriate.

“I am sure that we would agree that organisations such as the British National Socialist Movement and Patriotic Alternative, who promote neo-Nazi ideology, argue for forced repatriation, a white ethnostate and the targeting of minority groups for intimidation, are precisely the type of groups about which we should be concerned and whose activities we will assess against the new definition.”

In response, the MAB chair, Raghad Altikriti, said: “If Gove is confident in his views about the Muslim Association of Britain and other organisations, alleging extremist views and a threat to UK society, we challenge him to state them outside parliament.”

Zara Mohammed, the secretary general at the MCB, said she had consulted lawyers over a possible challenge if her group was named, and was “open to considering a group challenge” with others.

Gove was unveiling the government’s new definition of extremism on Thursday. One minister told the Guardian that deep concern about Gove’s plans extended across the government and the Tory backbenches.

“You can’t define extremism in a bubble,” they said. “You need to have the collaboration, and the legal advice to do so, and yet he has got people that deal with extremism, antisemitism, and everyone else in between asking how are you going to conduct this work.

“Why is a list needed? How is it going to be transparent and fair? If we have been in power for more than a decade, surely it would be possible to work through the levers of government in order to deal with concerns about any groups. Giving a minister the ability to blacklist an organisation isn’t reasonable or conservative.”

The former Home Office minister Robert Jenrick told the Commons: “I fear that the definition, though well-intentioned, lands in no man’s land: not going far enough to tackle the real extremists, not doing enough to protect the non-extremists, those people who are simply expressing contrarian views who might find this definition used against them, not perhaps now, but possibly in the future.”

The new definition, which will be distributed across government and Whitehall, will say: “Extremism is the promotion or advancement of an ideology based on violence, hatred or intolerance, that aims to: 1) negate or destroy the fundamental rights and freedoms of others; or 2) undermine, overturn or replace the UK’s system of liberal parliamentary democracy and democratic rights; or 3) intentionally create a permissive environment for others to achieve the results in 1) or 2).”

The previous guidelines, published in 2011, said individuals or groups were defined as extremist if they showed “vocal or active opposition to British fundamental values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs”.

Waleed Sheikh, a partner at the law firm Leigh Day who specialises in judicial reviews, said the definition was open to a challenge because it was “extremely broad”.

“This definition will undoubtedly have a chilling effect on free speech. Such a broad definition, plainly open to abuse and without an accompanying independent appeals process, would appear ripe for judicial review,” he said.

Government sources said groups that would in effect be cancelled by ministers for falling foul of the new definition would be named in the coming weeks.

There will be no appeals process if a group is labelled as extremist, it is understood, and groups will instead be expected to challenge a ministerial decision in the courts.

The moves follow a sixfold increase in antisemitic incidents and a fourfold jump in anti-Muslim hatred in the UK since Hamas’s terrorist attack on Israel on 7 October.

  • Michael Gove
  • Counter-terrorism policy
  • Conservatives

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Scotland’s hate crime law explained as new rule now in force

Scotland ’s new hate crime law goes into effect today.

Most of what the Hate Crime and Public Order (Scotland) Act 2021 includes isn’t new, however.

For the most part, it bundles together other hate crime rules into one package – but one particular policy, an offence for ‘stirring up’ hatred, has proved controversial.

Here’s everything you need to know.

What is Scotland’s new hate crime law?

‘The New Hate Crime Act that comes into effect as of today does not change a huge deal from what has already been in practice within the legislation for a considerable amount of time,’ Dr Rebecca Crowther, the chief executive office of the Scottish LGBTQ+ group Equality Network, tells Metro.co.uk.

‘Though the changes there are positive and will mean a lot to the communities affected.’

The act, which Holyrood passed three years ago, beefs up a 2010 law for ‘ statutory aggravation ’. This is when a criminal offence is committed and part of the motive is prejudice on certain grounds, so the offence is ‘aggravated’ by that prejudice.

‘People with variations in sex characteristics,’ such as intersex people, says Dr Crowther, ‘will be appropriately covered by the legislation for the first time.

‘Age has been added as a characteristic to be covered under the law.’

This helps police better catalogue the offence as a type of hate crime and also helps the courts take it into account when sentencing.

But the main talking point of the bill is the new ‘stirring up hatred’ offence, says Dr Crowther, which she has seen a lot of ‘misinformation’ around.

‘Stirring up’ means behaviour from someone that ‘that a reasonable person would consider to be threatening or abusive’ to incite hatred, the law states.

Stirring up racial hatred has been in the books since 1986 but MSPs branched the definition out to also cover: age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics.

As Equality Network puts it: ‘For example, if someone shouts threats at you in the street, using transphobic language, and putting you in a state of fear or alarm, that is likely to be a transphobic hate crime.

The maximum penalty is a prison sentence of seven years.

The act states that freedom of expression must be considered when deciding if behaviour is ‘reasonable’. It also uses the definition of the right laid out in Article 10 of the European Convention on Human Rights, which includes protection for ‘ideas that offend, shock or disturb’.

Equality Network adds: ‘If someone misgenders you on social media, that would not of itself be a crime. That’s because misgendering someone remotely would not of itself be provably both likely to, and intended to, put a reasonable person in a state of fear or alarm.’

When is Scotland’s new hate crime law in effect?

From today (April 1).

Why is Scotland’s new hate crime law controversial and what do critics say?

Critics of the law, including JK Rowling, X owner Elon Musk and podcaster Joe Rogan, have said this ‘ludicrous’ law, as the Harry Potter author put it, curbs free speech.

Some opponents have focused on not being able to express ‘gender critical’ views, which are beliefs largely against trans rights, in private and online.

SNP MP Joanna Cheery has claimed the ‘wide’ law will ‘silence, and worse still, criminalise women’.

LGBTQ+ groups have largely welcomed the law, however, given that hate crimes against the community in Scotland have doubled in the last 10 years, according to official figures . Between April 2022 and March 2023, there were 1,884 hate crime charges concerning sexual orientation and 55 transphobic hate crimes.

Peter Tatchell, an LGBTQ+ rights activist, says he does not doubt that the ‘well-intentioned’ hate crime act will protect countless Scottish people.

‘But I fear that some aspects of it – words like “hate”, “malice” and “ill will” – are not defined and could be open to harsher than justified interpretation,’ he says.

Tatchell adds: ‘There is an anxiety that, like other legislation of this nature of the past, it could have unintended consequences.’

The director of the Peter Tatchell Foundation says he knows a thing or two about vague words. ‘I’ve been arrested many times over behaviour likely to cause “harassment”, “alarm” or “distress”,’ he says.

‘In one incident, I merely held up a plaque calling for gay law reform… That shows how the law can be widely interpreted to restrict free speech.However, this legislation does say that discussion or criticism is not a grounds for criminalization.’

Vic Valentine, a manager for the charity Scottish Trans , says the law isn’t anything to worry about.

‘There is a big gap, as there absolutely should be, between things people say that we find upsetting, offensive – transphobic, even – and things that are criminal,’ they wrote in a column for The Scotsman .

‘The law should only interfere with people’s freedom of speech and expression with really good reason – and I think that the high threshold for this offence gets that right.’

Others have pointed out that, in the list of characteristics the act protects, one is missing: sex. This could leave women unprotected, they say.

Engender, a Scottish feminist policy group, told Holyrood that given how pervasive misogyny is, a dedicated law to tackling gender-based violence against women is needed. Simply including ‘sex’ in the hate crime act doesn’t go far enough, the group said .

‘Adding an aggravation offers no new protection where the law is not already designed or implemented to protect women and girls from harassment, harm or misogyny,’ Engender said.

The Scottish government has launched a study, chaired by Helena Kennedy KC, to look into anti-misogyny laws.

What other hate crime laws does Scotland have in place?

A heap of them, which is why politicians and campaigners felt new legislation was needed to streamline them.

For Dr Crowther, the bill’s journey has been a long one. One not helped by press coverage and people who have elbowed themselves into the conversation to ‘spread misinformation’ and ‘ultimately ridicule hate crime’.

‘I wish that all of this talk in the media over the past few weeks and today, in the lead-up to the coming into effect of the act, would have focused on the reality of hate crime,’ she says.

‘That it is rising, that it deeply affects marginalized communities, that it causes deep-rooted fear in communities, pain, poor mental health, isolation and that legislating to protect people from these harms is a good thing. 

‘Hate crime is serious, it ruins lives and communities. Hate crime is on the rise in Scotland and we want to see an end to it.’

Get in touch with our news team by emailing us at [email protected] .

For more stories like this, check our news page .

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The bill introduces a new offence for ‘stirring up’ hatred (Picture: Getty Images)

speech meaning in legal

Elon Musk Is an Immigrant?

Public disagreements about how to handle immigration resulted in u.s. rep. alexandria ocasio-cortez reminding elon musk he is an immigrant himself., anna rascouët-paz, published march 29, 2024.

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On March 28, 2024, U.S. Rep. Alexandria Ocasio-Cortez published a post on X (formerly Twitter) directed at billionaire Elon Musk, reminding him of the fact that he was an immigrant to the United States ( archived ):

Her post, which gained 122,000 likes and was reshared 13,000 times, as of this writing, came in response to a claim by Musk that the Democratic Party's goal was to acquire more voters by allowing them to stay in the United States. He shared this thought in reaction to a Daily Caller report that U.S. President Joe Biden was considering "handing out green cards to illegal immigrants" ( archived ):

A third post, this one in response to Ocasio-Cortez's, asked her to explain what she means by "immigrant" ( archived ):

Defining 'Immigrant'

The Oxford Languages dictionary defines an "immigrant" as "a person who comes to live permanently in a foreign country."

speech meaning in legal

By that definition, Elon Musk is indeed an immigrant. He was born in South Africa and obtained Canadian citizenship through his mother in 1988. He transferred as a student to the University of Pennsylvania in 1992 and moved to California in 1995. He became a U.S. citizen in 2002 .

In 2016, a claim began to circulate that he had been, for a time, an undocumented immigrant. Snopes fact-checked that claim and found that it was unproven , although his brother, Kimbal Musk, had joked during an interview that the two brothers spent some time in the country as "illegal immigrants."

Addressing the argument that Musk's case was different from that of people who "jump the border," Ocasio-Cortez replied that asking for asylum does not break U.S. law ( archived ):

Ocasio-Cortez was correct in noting that asking for asylum is legal in the U.S .

Voters for the Democratic Party?

As for the Daily Caller's claim that Biden was considering "amnesty" for "illegal immigrants," it stems from a Politico report  that White House and other administration officials discussed the possibility of expanding an existing program called " cancellation of removal ." This is a judicial program by which a person with a clean record who has been in the U.S. for more than 10 years can apply in immigration court to be allowed to stay if their removal might cause "extremely unusual hardship" to immediate family members. If the judge determines that all the conditions are met, the person is allowed to stay and receive a "green card" — permanent resident status. 

A green card allows a person to live and work in the U.S. It does not, however, allow them to vote. Green cards are a step towards citizenship, but they can be  revoked . By law, a permanent resident must wait at least five years to apply for citizenship, except if they are married to a U.S. citizen, in which case the delay is three years.

In early March 2024, Musk wrote a more detailed post about his position on immigration ( archived ):

Biden Considering Granting Amnesty, Handing Out Green Cards To Illegal Immigrants: REPORT . https://dailycaller.com/2024/03/26/biden-considering-granting-amnesty-handing-green-cards-illegal-immigrants/. Accessed 29 Mar. 2024.

Cancellation of Removal . U.S. Justice Department, https://www.justice.gov/eoir/page/file/1596141/dl?inline.

Elon Musk | Biography, SpaceX, Tesla, Twitter, X, & Facts | Britannica . 26 Mar. 2024, https://www.britannica.com/biography/Elon-Musk.

Evon, Dan. 'Elon Musk Was an Undocumented Immigrant?' Snopes , 11 Feb. 2016, https://www.snopes.com//fact-check/elon-musk-illegal-immigrant/.

Myah, Ward. 'Biden Was Planning Executive Action on the Border. Now He's Gone Silent.' Politico , 25 Mar. 2024, https://www.politico.com/news/2024/03/25/what-happened-to-bidens-executive-actions-on-the-border-00148717.

Who Is Elon Musk and What Is His Net Worth? 26 Apr. 2022. www.bbc.com , https://www.bbc.com/news/business-61234231.

'8 U.S. Code § 1158 - Asylum'.  LII / Legal Information Institute , https://www.law.cornell.edu/uscode/text/8/1158. Accessed 29 Mar. 2024.

By Anna Rascouët-Paz

Anna Rascouët-Paz is based in Brooklyn, fluent in numerous languages and specializes in science and economic topics.

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Definition of speech

  • declamation

Examples of speech in a Sentence

These examples are programmatically compiled from various online sources to illustrate current usage of the word 'speech.' Any opinions expressed in the examples do not represent those of Merriam-Webster or its editors. Send us feedback about these examples.

Word History

Middle English speche , from Old English sprǣc, spǣc ; akin to Old English sprecan to speak — more at speak

before the 12th century, in the meaning defined at sense 1a

Phrases Containing speech

  • freedom of speech
  • acceptance speech
  • part of speech

speech community

  • polite speech
  • free speech
  • hate speech
  • figure of speech
  • stump speech
  • visible speech
  • speech therapy
  • speech impediment
  • speech form

Dictionary Entries Near speech

Cite this entry.

“Speech.” Merriam-Webster.com Dictionary , Merriam-Webster, https://www.merriam-webster.com/dictionary/speech. Accessed 1 Apr. 2024.

Kids Definition

Kids definition of speech, medical definition, medical definition of speech, legal definition, legal definition of speech, more from merriam-webster on speech.

Nglish: Translation of speech for Spanish Speakers

Britannica English: Translation of speech for Arabic Speakers

Britannica.com: Encyclopedia article about speech

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Idaho pronouns, sex definition bills advance in Legislature

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Mia Maldonado, Idaho Capital Sun

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BOISE ( Idaho Capital Sun ) — Idaho’s Senate State Affairs Committee on Friday advanced two bills related to changing Idaho’s legal definition of the word “sex,” and protecting public employees from discipline if they refuse to use a pronoun that doesn’t align with an individual’s birth sex.

The committee first passed House Bill 421 , which would change the legal definition of “sex” as “an individual’s biological sex, either male or female.” It would also consider the word gender as a synonym of that definition of sex, and create legal definitions of the words boy, father, female, girl, male and mother.

Its sponsor, Sen. Ben Adams, R-Nampa, said the bill is a “cleanup bill for our definitions” that aligns with previously passed legislation. 

RELATED | Sex definition bill moves to Idaho House floor despite lack of support in public hearing

Only one person, Grace Howat, a representative of the Idaho Family Policy Center, testified in favor of the bill. Howat said without clear definitions of “female” and “male,” bathrooms and locker rooms become “meaningless.” 

Ten people testified against the bill, including Dr. Jessica Rolynn, a family medicine doctor based in southeast Idaho.

Rolynn said she has been studying human biology for the past 14 years, and there is “no such thing” as a binary in sex or gender. The bill, she said, does not take into account her patients who are intersex — or people with ambiguous genitalia at birth. 

“By combining gender and sex and limiting it to a binary, you are erasing American and world culture,” she said, while listing examples of gender diversity in different cultures. “This bill will do nothing but harm the people of Idaho.”

RELATED | Local legislator introduces bill to change legal definition of ‘sex’ in state law

Three senators, Sen. Melissa Wintrow, D-Boise; Sen. Abby Lee, R-Fruitland; and Sen. Mary Shea, a substitute for Sen. James Ruchti, D-Pocatello, voted and spoke against the bill moving forward. 

“I also am really sitting here heavy on my heart with the statements that have been made by many people in this committee and many times over this Legislature that our constitution is to protect the minority,” Lee said. “And when we look at vulnerable, marginalized individuals who would be harmed — I think that that should matter to us.”

But the bill is still moving forward to the Senate floor with a recommendation that it pass from the committee. The bill already passed the House of Representatives in a 52-14 vote. 

Pronouns legislation protects freedom of speech, bill sponsors say

Following testimony for House Bill 421, many of the same people also testified for and against House Bill 538 — or what is commonly known as the pronouns bill. 

House Bill 538 would prohibit any government entity from compelling a public employee to use the preferred personal titles or pronouns that do not correspond with the biological sex of an individual.

Its bill sponsor, Sen. Chris Trakel, R-Caldwell, said the bill is a freedom of speech bill and allows people to stick with their personal and religious beliefs without punishment. 

“This bill is not bullying,” Trakel said. “This bill is to protect freedom of speech. You cannot compel an individual to say what you want them to say, especially us as the government.”

Trakel said no individual is compelled to refer to him as “senator,” and people have the freedom to address him how they choose, even if it is disrespectful. 

“Respect is a two-way street, and we cannot legislate respect,” Trakel said. 

But opponents, including the ACLU of Idaho, said the bill would allow public employees to misgender transgender employees and students. 

“The bill violates several constitutional rights and federal anti-discrimination protections,” ACLU of Idaho legislative strategist Amy Dundon said during testimony. “It distorts the meaning of the Constitution and inappropriately invokes First Amendment protections by pitting equal treatment and privacy protections against speech.”

The committee in a 5-4 vote moved to advance the pronouns bill. With both bills moving past the committee, an affirmative vote on the Senate floor would secure the bills a spot on Idaho Gov. Little’s desk for consideration. 

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COMMENTS

  1. freedom of speech

    freedom of speech. Freedom of speech is the right to speak, write, and share ideas and opinions without facing punishment from the government. The First Amendment protects this right by prohibiting Congress from making laws that would curtail freedom of speech. Even though freedom of speech is protected from infringement by the government, the ...

  2. What Does Free Speech Mean?

    Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not ...

  3. First Amendment and free spech: When it applies and when it doesn't

    That doesn't mean you can't put regulations on a speech, like dictating the time, place, venue and suggestions for subject matter. It just means you can't do so in a way that discriminates ...

  4. Freedom of Speech and the Press

    Amendment 1. 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. Matters of Debate. Common Interpretation.

  5. Freedom of Speech

    Freedom of speech is a person's right to speak his or her own opinions, beliefs, or ideas, without having to fear that the government will retaliate against him, restrict him, or censor him in any way. The term "freedom of expression" is often used interchangeably, though the "expression" in this sense has more to do with the way in ...

  6. Freedom of Speech

    Freedom of speech—the right to express opinions without government restraint—is a democratic ideal that dates back to ancient Greece. In the United States, the First Amendment guarantees free ...

  7. What is "speech" within the meaning of the First Amendment? The

    In Doe v Reed (2010), the Court considered whether the signing a state referendum petition is "speech" within the meaning of the First Amendment and, if it is, whether the state's disclosure of the names of petition signers violates their First Amendment rights. Eight members of the Court agreed that the signing of a referendum petition was "an ...

  8. The First Amendment: Categories of Speech

    entirely categorical. That is, just because a law implicates protected speech does not mean that the law automatically violates the Free Speech Clause. Likewise, the First Amendment may still provide grounds to challenge a law regulating unprotected speech. Nevertheless, the category of speech at issue can help determine what First

  9. Freedom of speech

    freedom of speech, right, as stated in the 1st and 14th Amendments to the Constitution of the United States, to express information, ideas, and opinions free of government restrictions based on content.A modern legal test of the legitimacy of proposed restrictions on freedom of speech was stated in the opinion by Oliver Wendell Holmes, Jr. in Schenk v.

  10. What is the compelled speech doctrine?

    The compelled speech doctrine, generally bars the government from compelling people to express things they do not want to say. The First Amendment's free speech protections generally bar the ...

  11. Freedom of speech

    Liberalism portal. Politics portal. v. t. e. Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recognised as a human right in the Universal Declaration of Human ...

  12. Freedom of speech in the United States

    England. During colonial times, English speech regulations were rather restrictive.The English criminal common law of seditious libel made criticizing the government a crime. Lord Chief Justice John Holt, writing in 1704-1705, explained the rationale for the prohibition: "For it is very necessary for all governments that the people should have a good opinion of it."

  13. First Amendment

    First Amendment - Free Speech, Press, Religion: Despite the broad freedom of expression guaranteed by the First Amendment, there are some historically rooted exceptions. First, the government may generally restrict the time, place, or manner of speech, if the restrictions are unrelated to what the speech says and leave people with enough alternative ways of expressing their views.

  14. Speech legal definition of Speech

    SPEECH. A formal discourse in public. 2. The liberty of speech is guaranteed to members of the legislature, to counsel in court in debate. 3. The reduction of a speech to writing and its publication is a libel, if the matter contained in it is libelous; and the repetition of it upon occasions not warranted by law, when the matter is slanderous ...

  15. Overview of Obscene Speech

    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. ... Even as to materials falling within the constitutional definition of ...

  16. Speech and debate clause Definition & Meaning

    The meaning of SPEECH OR DEBATE CLAUSE is a clause in Article I, Section 6 of the U.S. Constitution granting members of Congress a privilege from arrest and legislative immunity for any speech or debate made in either of the houses —called also speech and debate clause.

  17. Public vs. Private Speech

    Public vs. Private Speech. In addition to determining whether a restriction is content-based or content-neutral, courts also consider whether the speech or assembly is given or held in a public or private forum. Government property that has traditionally been used by the public for the purpose of assembly and to disseminate ideas is considered ...

  18. The Legalities Of Hate Speech

    A person hurling insults, making rude statements, or disparaging comments about another person or group is merely exercising his or her right to free speech. This is true even if the person or group targeted by the speaker is a member of a protected class. According to U.S. law, such speech is fully permissible and is not defined as hate speech.

  19. Symbolic speech Definition & Meaning

    compare commercial speech, pure speech. Note: Symbolic speech is entitled to free speech protection under the First Amendment to the U.S. Constitution unless its regulation is within the constitutional power of the government and is justified by an important government interest, and the restriction placed on it by regulation is no greater than is essential to the furtherance of that interest.

  20. Supreme Court tackles social media and free speech : NPR

    Supreme Court tackles social media and free speech In a major First Amendment case, the Supreme Court heard arguments on the federal government's ability to combat what it sees as false ...

  21. Political speech Definition

    Cite. Political speech means speech relating to the state government, body politic, or public administration as it relates to governmental policymaking. The term includes speech by the government or a candidate for office and any discussion of social issues. The term does not include speech concerning the administration, law, or civil aspects ...

  22. In ALL-CAPS Easter message, Trump rips into his foes

    Former President Donald Trump's Easter Sunday message on Truth Social consisted of seven words about Easter and 161 complaining about the legal system and various enemies of his.

  23. Pure speech Definition & Meaning

    noun. : the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea compare commercial speech, symbolic speech. Note: Pure speech is accorded the highest degree of protection under the First Amendment to the U.S. Constitution.

  24. Gove faces legal action threats after suggesting Muslim groups are

    Michael Gove is facing threats of legal action after naming Muslim organisations that could fall foul of a new definition of extremism. Amid free speech fears among Conservatives, the communities ...

  25. Scotland's hate crime law explained as new rule now in force

    Scotland 's new hate crime law goes into effect today. Most of what the Hate Crime and Public Order (Scotland) Act 2021 includes isn't new, however. For the most part, it bundles together ...

  26. Elon Musk Is an Immigrant?

    By that definition, Elon Musk is indeed an immigrant. He was born in South Africa and obtained Canadian citizenship through his mother in 1988. He transferred as a student to the University of ...

  27. Speech Definition & Meaning

    speech: [noun] the communication or expression of thoughts in spoken words. exchange of spoken words : conversation.

  28. Idaho pronouns, sex definition bills advance in Legislature

    The committee first passed House Bill 421, which would change the legal definition of "sex" as "an individual's biological sex, either male or female." It would also consider the word ...

  29. Israel cancels Washington visit after US allows UN Gaza ceasefire ...

    Tensions between the US and Israel were exposed on Monday when Washington stood aside and allowed the UN Security Council to pass a resolution calling for an immediate ceasefire in Gaza.