What Is Freedom of Speech and What Are Its Limits?

• By: Catalina Marchant de Abreu
• August 9, 2016, 9:28 am

Thanks in large part to Donald Trump, campaign 2016 has been one long litany of controversial comments.  Mexican immigrants are “rapists.”  On the Wall Street Journal: “I will unleash big time on them.” On himself: I “could shoot people and I wouldn’t lose voters.”

The campaign has left many observers scratching their heads and asking themselves, “Can he really say that?”

The short answer is: of course he can. Because of a little thing called freedom of speech, which is enshrined in the U.S. constitution and applies to Trump as much as it does to anyone else in America.

The concept of freedom of speech is enshrined in the Bill of Rights, which states that “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 other words, Americans have the right to express their opinion without censorship or restraint. But there are limits. Trump may have toed the line once or twice, but so far he hasn’t stepped over it.

“Freedom of speech is limited,” says attorney Dana Rothman. “Everyone has freedom of expression but only to the extent that you’re not interfering with someone else’s.”

“I have the right to walk down the streets and be left alone, those are my freedoms,” added Rothman. “So if someone’s freedom [of speech] interfere with my rights, that’s when the law will protect someone for being harmed.”

Forms of expressions that are unprotected by the First Amendment include fighting words, true threats, child pornography, obscenity, perjury, defamation (including libel and slander), blackmail, solicitations to commit crimes and incitement to imminent lawless action.

Speech about certain classes of people is also restricted. The Civil Rights Acts prevents people from discriminating against others because of their race, skin color, national origin, age, sex, citizenship, religion, family status, disabled, a veteran or if they are pregnant. And that includes discriminatory words.

Courts have been narrowing down the definition of freedom of speech for decades. In some of the more notable decisions, they have decided that freedom of speech includes the right:

• Not to speak (specifically, the right not to salute the flag).
• To wear black armbands to school to protest a war.
• To use certain offensive words and phrases to convey political messages.
• To contribute money (under certain circumstances) to political campaigns.
• To advertise commercial products and professional services (with some restrictions).
• To engage in symbolic speech, (e.g., burning the flag in protest).

They have also ruled, however, that freedom of speech does not include the right:

• To incite actions that would harm others (e.g., “shouting ‘fire’ in a crowded theater.”).
• To make or distribute obscene materials.
• To burn draft cards as an anti-war protest.
• To permit students to print articles in a school newspapers over the objections of the school administration.
• To make an obscene speech at a school-sponsored event.
• To advocate illegal drug use at a school-sponsored event.”