What Exactly is Protected by the First Amendment?

Freedom of speech is a hot topic these days – NFL protests, political protests, neo-Nazis marching in the streets…

Everyone believes that their speech is protected by the First Amendment and that they are therefore insulated from the consequences of the things that they say and do. This may seem obvious to people who know me, but the First Amendment and all our constitutional rights are sacred in my view.

But, what is actually covered by the First Amendment’s right to freedom of speech?

I Do Not Defend Your Right to Say Whatever You Want


The First Amendment doesn’t protect you from criticism or consequences for the things that you say – it only protects you from government action or retaliation for your speech.

For example, if you are a neo-Nazi or the equivalent spouting hateful nonsense about the superiority of the white race, you may be protected from arrest or other actions taken by government actors, but you are not protected from consequences or criticism from anyone else.

I don’t support your right to spread hatred and stupidity. Honestly, I don’t support your right to be free from government intrusion when the speech involved is calculated to promote violence, hatred, or, you know, a holocaust…

I will, however, with the above exception, aggressively defend your right to freedom from government interference with your expression of your views and opinions, whether I agree with them or not.

So, What Is Covered by the First Amendment?

Basically, whatever the U.S. Supreme says is covered…

Some examples include:

  • Your right not to speak – for example, to not salute the flag. West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943);
  • Your right to protest on a school campus, for example, by wearing black armbands to protest a war. Tinker v. Des Moines, 393 U.S. 503 (1969);
  • Your right to symbolic speech like burning a flag. Texas v. Johnson, 491 U.S. 397 (1989) and United States v. Eichman, 496 U.S. 310 (1990);
  • Your right to use offensive language if you choose. Cohen v. California, 403 U.S. 15 (1971);
  • Your right to criticize police officers or other government officials. Houston v. Hill, 482 U.S. 451 (1987); and
  • Your right to curse, criticize, or say pretty much whatever you want to any person, including and especially police officers, so long as you are not using “fighting words.” Houston v. Hill, 482 U.S. 451 (1987), Norwell v. Cincinnati, 414 U.S. 14 (1973).

When it comes to police officers, you not only have the right to speak your mind, but you also have the right to sue them for monetary damages if they arrest you for exercising your First Amendment right to freedom of speech…

What is Not Covered by the First Amendment?

The First Amendment does not always protect you from arrest or other government action – situations where you can be arrested and prosecuted include:

  • The use of “fighting words” that would tend to immediately incite violence. Schenck v. United States, 249 U.S. 47 (1919);
  • Distribution of “obscene” materials (What is obscene? You’ll know it when you see it, apparently). Roth v. United States, 354 U.S. 476 (1957);
  • Burning draft cards to protest a war. United States v. O’Brien, 391 U.S. 367 (1968);
  • “Obscene” speech at a school-sponsored event. Bethel School District #43 v. Fraser, 478 U.S. 675 (1986); or
  • Advocating illegal drug use at a school-sponsored event. Morse v. Frederick, 551 U.S. 393 (2007).

Criminal Defense and First Amendment Lawyer in Charleston, SC

To recap, I will fight tirelessly to defend your right to be free from government interference with your right to free speech (that’s what the First Amendment covers). On the other hand, I’m not concerned with how Jane Doe slammed you on Facebook because she disagreed with you…

On the other hand, if you’ve been arrested or charged with a crime based solely on speech such as criticism of a police officer or other government official, you may have a civil rights lawsuit for money damages after we get your case dismissed or win an acquittal…

Call Charleston, SC criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or contact us through our website to discuss your case.