 Freedom of expression. It's one of our most cherished rights. One of the things that makes America America. The right to say whatever you want to whoever you want. Of course, you can't say it just anything you want to, right? There are rules about these things. But this isn't just any old area of the law. This involves the Constitution and the Bill of Rights. So what are the rules? What can you and can't you say? When is the government allowed to interfere with your right to free speech? Let's spend a little time talking about some of the basic law here. First, the amendment itself is pretty clear. And short, Congress shall make no law abridging the freedom of speech or of the press. So there you have it. Everything you need to know, just so I can just, on its odd, it only says Congress. So the states are free to do whatever, right? Not quite. Through the 14th amendment passed after the Civil War, most of the rights and the Bill of Rights have been extended to cover actions by state governments as well as the federal one. Even so, what counts as abridging the right? Uh, no. Better. You should know that banning a restricting speech counts, but so does taxing it. Also, it doesn't matter if you actually talk at all. Protected expression includes any actions designed to convey a specific message where there's a good chance that the message will be understood by the audience. There are two general ways a law can restrict speech. Either a law can restrict speech based on what is being said, which is called content-based restriction, or a law can restrict speech based on something else, like where the speech is happening or how the speech is being made. Rules about what you can say are really hard to get passed. Rules about how you can say it are usually easier to make. There are some categories of content and speech that are easier to regulate. These are categories like obscenity, meaning anything x-rated, fraudulent misrepresentation, meaning lying to people to get their money, defaming someone, meaning lying to harm their reputation, advocacy of law-breaking, and so on. You can sort of imagine why those kinds of speech might not be as well protected as others. To be considered advocating breaking the law, you need to say something that is designed to get people to commit an illegal act in the immediate future, and it is actually likely to cause such a thing to happen. It's not enough to just talk about illegal things. Then there's fighting words. That's when someone says something designed to inflict injury or cause a breach of the peace. This is kind of a vague definition, so the fighting words also have to do more than just make someone angry. They need to contain some specific words or deeds calling for violence. It's also not enough that the police just have a general concern about violence happening. Sometimes the government is trying to restrict speech as fighting words on the grounds that it would be found offensive, but those rules are usually struck down. Some rules about hate speech directed towards minorities have been left standing, but they have to be pretty narrow. And then there's obscenity. Obscenity has been really hard for the courts to figure out, and it varies a lot from case to case. The modern definition is that it has to be about sex, that it needs to be something that would offend the average person in that community, and that it needs to be lacking in the redeeming social value. So you can get out of obscenity by saying you're being artistic. But this only applies to obscenity in public. The government can't regulate private possession of obscene material, which might be for the best, and not just to prevent the government from getting in your business, either. The government has given more freedom to regulate obscene contents than minors don't see it, but that doesn't mean they can do whatever they want in that regard. If government is trying to restrict speech that doesn't fall in one of these categories and someone sues them, the court will look at the law very closely and the government will have to show that the regulation is as narrow as it can reasonably be, and is designed to protect a compelling government interest. Being the one who has to prove the case makes a big difference, so most laws reviewed under this standard end up being struck down. The ultimate goal of being so hard on any content-based restrictions is to avoid a situation where the government can influence what you're allowed to say, especially about the government itself. I wonder why the founders were so concerned about being able to criticize powerful people in the government. Even if the government is trying to restrict speech in the less protected categories listed before, it doesn't get free reign. It can ban bad speech, but it will get in trouble if that ban also prevents a lot of okay speech. The rule is that it shouldn't be easy to ban speech based on what is being talked about, which is bad news for those of you trapped talking to the boring guy at a cocktail party. So that's private everyday talking that doesn't fall into one of the special categories. Just shootin' the old breeze. Speech in public forums outside those special categories is even more protected, and the government can only pass narrow restrictions to advance a specific and compelling government interest, even if the restriction isn't related to the content of the speech. The court doesn't take the government at its word either. Even if the government claims not to be restricting speech on the basis of content, the court may still decide that's what they really meant to do. So you can see it's pretty hard to restrict speech based on what someone is saying or in public. What can the government do when it wants to restrict speech based on how the person is saying it? There are two basic tests. First, the regulation must be narrowly tailored. No, not like that. Narrowly tailored means fairly close to just restricting the actions the government is trying to avoid. The government doesn't have to pick the least restrictive regulation possible though. The second test is that the government must leave alternative channels for the speaker. That means everyone will have a chance to be heard, just maybe not the way they had hoped. If the person wants to speak in a public forum, they will have to be given reasonable access to it. The government can't argue that the speaker could just come back at a different place or time. The government will get more leeway if it can show that any restrictions on speech are caused by an effort to stop activity commonly associated with that speech, rather than trying to stop the speech itself. For example, is the government regulating Star Trek conventions to try to prevent angry debates over Kirk versus Picard, or is it trying to prevent the property damage that they cause? Hopefully now you'll understand a little bit more about the First Amendment. And there you have it.