What are the limits to free speech? Under the First Amendment to the U.S. Constitution, the right of free speech is broad and guaranteed to all. This Amendment prohibits the federal government from abridging this right, and the U.S. Supreme Court in modern times has interpreted the First Amendment as also limiting the ability of state and local governments to regulate speech expression.
At the same time, the courts have interpreted the meaning of free speech in a manner that allows government to regulate and limit free speech in a variety of ways.
First, certain kinds of contents has been ruled to have either more limited protection, or in some cases, no protection at all. Among unprotected categories of speech are pornography (obscenity), child pornography, “fighting words,” and incitement to imminent violent action, such as threats to kill an individual.
Pornography, while difficult to define, essentially involves expression designed to appeal to an individual’s sexual arousal, without redeeming social, artistic, political, literary, or scientific value. Additionally, the legal test for what is obscene, and therefore can be prohibited, is based on contemporary standards in a local community, which is a troubling standard to apply today, when adult material is distributed worldwide via the Internet.
Child pornography can be outlawed regardless of its particular content or supposed literary merit, because it involves the depiction of sexual acts by a child. The rationale is the protection of the children so depicted, and the need to protect other children from the harm they would suffer from being depicted in similar pornography by imposing sanctions on those producing or purchasing such materials, in order to diminish the market demand for it.
Commercial speech and speech that constitutes libel or slander are provided with a lesser level of protection. Commercial speech can be regulated to make sure that it is not misleading or fraudulent, and defamation, while it can’t be prohibited outright, can subject a speaker or author to a lawsuit for damages. “Indecent” speech may face particular restrictions when minors are exposed to it, and this has resulted in the regulation of indecent expression in broadcasting.
Second, even clearly protected speech can be regulated in the sense of being subject to content neutral time, place, and manner restrictions. A speaker has the right, for example, to express his disapproval of his congressional representative’s position on taxation, but a city can lawfully enact an ordinance preventing him from doing so at 2 a.m. using a loud bullhorn in a residential neighborhood.
Speech also often incorporates actions as well as pure expression, such as demonstrating and picketing. Expressive conduct of this sort can also be subject to reasonable regulations, such as permit requirements. And the right to pass out leaflets does not exempt an individual, on the basis of their right to free speech, from laws prohibiting littering.
Such time, place, and manner regulations of free speech must be content neutral, which means that the regulations must be applied to both proponents and opponents of a particular point of view on controversial subjects like abortion, gay marriage, particular wars, etc.
There are a myriad of other permissible ways in which limits to free speech are imposed. Still, all things considered, the legal system in the United States does allow for a remarkable amount of free expression.
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