Is There Any Speech Prohibited by the First Amendment?

The First Amendment does not prohibit any speech, but there are some types of speech for which there is no, or very limited, First Amendment protection. These include:

    1. speech that promotes and incites actual, immediate and imminent violence and harm;
    2. “fighting words” (i.e., words directed to a person that are so abusive that they tend to incite an immediate physical retaliation);
    3. true threats (i.e., when a reasonable person would view the speech as a serious intent to harm and there is the prospect of immediate execution);
    4. defamation (i.e., libel and slander);
    5. obscenity;
    6. severe, pervasive and objectively offensive harassment that deprives the individual of equal access to resources;
    7. false advertising; and
    8. use of public resources for partisan politics.

But these exceptions are interpreted very narrowly; most speech will still be considered protected under the First Amendment.

What about Hate Speech?

There is no legal definition of “hate speech” and it is not a category of speech that the courts have held is an exception to the First Amendment. In fact, the courts have made it clear that no one has a constitutional right to not be offended by speech. For this reason, what some may label “hate speech” is as fully protected as any other form of protected speech. People, including those in the SJSU community, are as free to condemn any category of individual—whether on the basis of race, religion, national origin, ethnicity, sexual orientation, citizenship status, political party, ideology, hair style or taste in music. Free speech protections only apply to speech and expressive conduct and not to an individual’s actions. For example, hate crimes are regulated under both state and federal law. If you believe a hate crime has occured, contact the University Police Department.

How much one values the First Amendment is tested most severely when the person who is speaking is saying things that we find offensive or hateful, or that we disagree with. Yet that speech is also protected because when the government has the right to suppress certain ideas, everyone is subject to censorship.

SJSU thanks SDSU for permission to use their Freedom of Speech website content.