“Free speech” is one of the most passionately debated topics of our time, fueling endless arguments on social media, in classrooms, and across dinner tables. We invoke the term to defend our own views and to condemn the words of others. It’s a concept so central to American identity that we often assume we understand it intuitively.
Yet, despite its constant presence in our discourse, fundamental misunderstandings about what free speech actually means under U.S. law are surprisingly common. The legal reality is often far more nuanced and counter-intuitive than the popular perception. What we think the First Amendment protects and what it actually protects can be two very different things.
This article explores four of the most surprising takeaways from a recent conversation about free speech and religious freedom. By clarifying what the law really says, we can move beyond common myths and engage in more informed conversations about the freedoms we have.
1. Hate Speech Is Legally Protected in the United States
This is perhaps the most jarring reality for many Americans. Unlike in many other Western nations like the United Kingdom, where thousands are arrested each year for online posts, there is no “hate speech” exception to the First Amendment in the United States. Under U.S. law, even deeply offensive and repugnant expression is protected from government censorship.
The principle rests on a deep-seated skepticism of allowing the government to be the arbiter of which ideas are too hateful to be expressed. As attorney Michael Peabody noted in last weekend’s ATSS discussion, this is a check on the abuse of power. “Whoever is in power or whoever’s not in power says ‘Hold people accountable’… And then when they get in power they’re like you know we don’t let them talk… These are rights and privileges and ideas that need to be available to everybody regardless of who is in governing power.”
This principle was famously tested in R.A.V. v. City of St. Paul. A teenager who burned a cross on a Black family’s lawn was prosecuted under a city ordinance banning symbols that could arouse anger based on race or religion. The Supreme Court struck down the ordinance, not because the act was acceptable, but because the law itself was guilty of “viewpoint discrimination.” This doesn’t mean the act was consequence-free; Peabody clarifies that the teenager could still have been prosecuted for other crimes like vandalism or making a “true threat.” The key takeaway is that the government cannot single out specific hateful messages for punishment.
In the United States there is no prosecution for hate speech. As far as government action goes there is no hate speech exception to the First Amendment in the United States even deeply offensive and repugnant expression is protected from government censorship.
2. That “Fire in a Crowded Theater” Argument Is Mostly Obsolete
The reason hate speech remains protected is directly tied to the Supreme Court’s very high bar for what constitutes punishable speech. The common retort, “you can’t yell fire in a crowded theater,” is often used to justify speech restrictions, but it’s based on a legal standard from a case that was ultimately overturned.
The modern, much stricter legal test was established in the 1969 case Brandenburg v. Ohio. The current standard holds that speech is protected unless it is intended to and is likely to incite “imminent lawless action.” This is a very high bar. It means that simply advocating for illegal acts in the abstract or expressing inflammatory opinions is not enough to lose First Amendment protection.
The key principle connecting these cases is that the speech must be a direct and immediate call to illegal acts that are likely to happen right away. For example, standing before a crowd and saying, “Here are some matches, go burn down that building right now” would likely qualify as incitement. In contrast, a generalized anti-government rant, even one that praises law-breaking, is typically protected speech.
3. Free Speech Protects You From the Government, Not Your Boss
A frequent misunderstanding is that the First Amendment grants a right to say anything without any repercussions whatsoever. This isn’t true. The crucial distinction is that the First Amendment only protects you from actions taken by the government. It places no restrictions on private individuals, companies, or organizations.
This means that while the government can’t arrest you for your opinions, your private employer can certainly fire you for them. A university can revoke your scholarship, and you can face significant social backlash from your community. What this demonstrates is that the First Amendment is a shield against state power, not a shield against private consequences.
In short, the First Amendment ensures you won’t be prosecuted by the state for expressing an unpopular or even offensive idea. It does not, however, guarantee that you won’t lose your job, your friends, or your reputation for doing so.
4. The Supreme Court Dodged the Real Question in the Famous Baker Case
The highly publicized Masterpiece Cakeshop case, involving a Colorado baker who declined to create a wedding cake for a same-sex couple, is often remembered as a landmark decision on whether a creative act like baking a cake constitutes “speech.” Many believe the Supreme Court settled that very question.
But the Court didn’t. In its 7-2 ruling in favor of the baker, the Supreme Court skillfully danced around the central issue. The decision was not based on whether a cake is speech. Instead, the Court ruled on narrower grounds, finding that the Colorado Civil Rights Commission had shown “hostility toward his religious beliefs” during its proceedings. This violated the core constitutional principle that the government must remain neutral toward religion. This is a classic example of judicial minimalism: the practice of resolving cases on the narrowest possible grounds to avoid making sweeping rulings on contentious social issues.
The subsequent 303 Creative case, which involved a web designer, more directly addressed the issue of “compelled speech.” Unlike a cake, whose expressive nature is debatable, a custom website is unambiguously an act of pure expression. This distinction forced the Court to confront the central question it had previously avoided, illustrating how it can resolve a major case while leaving the bigger, more controversial question for another day.
Conclusion: Navigating a World of Amplified Words
The legal framework governing free speech in the United States is far more complex and specific than our public debates often suggest. The theme connecting these surprising truths is that the First Amendment is fundamentally about protecting speech from government overreach. It is designed to preserve a “marketplace of ideas,” even when that marketplace contains products we find repugnant, and it leaves private actors free to respond as they see fit.
Understanding these nuances is more critical than ever. We live in an age where the internet gives a global platform to everyone, creating a dynamic where, in the words of Michael Peabody, “the weirder you are the more likes you get.” In this environment, how do we champion the foundational principle of free speech while effectively countering the bad ideas that thrive on the oxygen of online attention?