I am confused as to how they can prevent certain kinds of speech from being used. Doesn't the Constitution say it can't be limited?

  • 2
    Has the Supreme Court restricted free speech? In what way?
    – F1Krazy
    Jan 10 at 22:41
  • I think so, for example they ban speech that incites violence or defamation. I'm not sure though.
    – The Mamba
    Jan 10 at 22:42
  • 4
    The question is too vague to answer right now. But when you edit the question to mention a specific supreme court ruling which you believe restricts freedom of speech, then we could look into their ruling and perhaps tell you what gives them the authority.
    – Philipp
    Jan 10 at 23:21
  • 1
    No right is absolute.
    – phoog
    Jan 11 at 0:12
  • 1
    I think the down votes here are unfortunate. News reports of SCOTUS rulings on speech issues often frame them as "the court has forbidden X speech" or "The Court has permitted Y" without mentioning the law or regulation that the Court is passing on. This makes it natural to think of the Court as restricting speech in some cases. Jan 11 at 1:09


The Supreme Court does not "restrict free speech". What it does is decide whether restrictions passed by Congress, or by a state legislature, or by some regulation, executive action, or other governmental action, violate the First Amendment's guarantee of free speech.

That says:

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.

(The court has held that this was made applicable to the states via the Fourteenth Amendment. Prior to that it applied only to the Federal Government)

But the court has held that not all words are covered by this protection. It has said that obscenity is not protected speech, nor are "fighting words" nor is incitement to crime, nor is defamation. Whole books could be (and have been) written about just what is and is not protected speech under the First Amendment

But in none of these cases has the Court said what should be or will be restricted, only what could be if Congress or other legal authority chose to do so.

Justice Hugo Black famously took the view that this was absolute, that "when the first amendment said 'Congress shall make no law' it meant NO law". More formally:

Speech is wholly 'beyond the reach' of federal power to abridge ... I do not believe that any federal agencies, including Congress and the Court, have power or authority to subordinate speech and press to what they think are 'more important interests'.

But the court as a whole has never adopted Black's view. And even Black put significant limits on what he would call "speech". He did not view expressive conduct as "symbolic speech", such as flag burning or wearing a black armband.

  • 1
    Meh. This a bit of legal hair splitting in that SCOTUS has defined some speech (in the common sense of the word) not to be "speech" (in the sense of the 1st Amendment). In European jurisprudence, the equivalent prestidigitation is somewhat more explicit in that human rights are balanced against each other, so speech can be restricted if it were e.g. to endanger life (the famous "scream fire in a theater" example used in the US is easily cast as a balancing test in the latter view).
    – Fizz
    Jan 11 at 0:36
  • In practice, the US also used some balancing tests mtsu.edu/first-amendment/article/1608/pickering-connick-test but they were apparently not happy with that and they turned these into a categorical distinction mtsu.edu/first-amendment/article/596/garcetti-v-ceballos
    – Fizz
    Jan 11 at 0:49
  • @Fizz The 1st Amendment doesn't appear to specify what "freedom of speech" means. It doesn't say "all speech should be legal". It just says "you shall have freedom of speech". The court may decide that "freedom of speech" doesn't have to mean that all speech is legal, only some speech. (You'd be hard-pressed to argue that words that come out of your mouth are not speech)
    – user253751
    Jan 11 at 15:31

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