What speech does the First Amendment protect?

The First Amendment is arguably the most celebrated and litigated part of the U.S. Constitution. But what exactly does it protect? In this article, we’ll explore the basics and illustrate them with recent cases.

What is the First Amendment & why was it created?

The First Amendment to the U.S. Constitution states:

“Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; or to petition the Government for a redress of grievances.” 

It protects five core freedoms:

1. Freedom of speech
2. Freedom of the press
3. Freedom of religion (both exercise and prohibition of government-established religion)
4. Right to peaceably assemble
5. Right to petition the government

The Framers included these five freedoms of the First Amendment to ensure that citizens could criticize government, advocate for change, engage in discourse, and hold the government accountable without fear of suppression or government retaliation.

Why is the First Amendment important?

The First Amendment supports our democratic society by ensuring the free flow of ideas, critiques, dissent, and debate. It allows for:

• Holding government officials accountable
• Enabling social and political movements
• Promoting intellectual and cultural creativity
• Ensuring minority viewpoints are heard

By limiting government power and enumerating rights like those in the First Amendment, the Constitution creates a structure that constrains authority and protects citizens from arbitrary censorship or punishment.

What doesn’t the First Amendment protect?

The First Amendment offers robust protection for speech, but it is not absolute. Below are key principles and limitations:

Broad protections (what is protected)

• Political, social, and religious speech
• Criticism of public officials
• Symbolic speech (e.g. flag burning, demonstrations)
• Satire, parody, and mockery
• Peaceable protest
• Some forms of offensive or unpopular speech (including criticism, insults, provocative statements)
• Anonymous speech

Because speech rights are so central to self-governance, laws that restrict speech are often subject to strict scrutiny—meaning the government must show a compelling interest and use the least restrictive means of enforcement.

Recognized limits (what is not protected or may be regulated)

• Obscenity (as narrowly defined under Miller v. California)
• Child pornography
• Incitement to imminent lawless action (Brandenburg standard)
• True threats, defamation, or fighting words in limited contexts
• Commercial speech (such as advertisements) can be more regulated
• Time, place, and manner restrictions (content-neutral, such as requiring all parades to get a permit)
• Content-based viewpoint discrimination is closely scrutinized

Also, the government cannot punish speech simply because it dislikes the viewpoint expressed (i.e. viewpoint discrimination).

Keep in mind, the First Amendment restricts what the government does; individuals and businesses do not necessarily have to allow speech they find offensive.

Is hate speech protected?

In U.S. constitutional law, yes, for the most part. The First Amendment does not allow the government to criminalize speech solely because it is hateful, unless it meets one of the narrow, unprotected categories above (e.g. incitement, true threat). So, hateful or offensive speech is generally protected, though private platforms and civil remedies may apply.

First Amendment rights in practice: Notable cases & recent disputes

Harvard, viewpoint control, and funding threats

The Trump administration has attempted to condition funding to universities—including Harvard—on changes to admissions, hiring, and “viewpoint diversity” requirements. Critics say such demands coerce academic institutions into favoring government-favored speech.

In 2025, a federal judge ruled that freezing nearly $2 billion in federal grants to Harvard violated its First Amendment rights. The court found that the government’s actions looked like retaliation for Harvard’s protected speech and viewpoint decisions.

Free Speech Coalition v. Paxton

In June 2025, the U.S. Supreme Court decided Free Speech Coalition v. Paxton, a case with major implications for online speech regulation.

The case involved a Texas law (H.B. 1181) requiring age verification for websites that publish sexually explicit content “harmful to minors.” The Supreme Court upheld the law (6–3), concluding that it only incidentally burdens adult speech and thus survives under intermediate scrutiny. The ruling opens the door for other states to enact similar “age-gating” regulations.

The decision is controversial because it marks a shift away from the stricter protection standard typically afforded content-based speech restrictions. Critics argue it weakens free speech protections online.

Free speech in the news

On September 10, 2025, Charlie Kirk was assassinated while speaking at an event at Utah Valley University. The event quickly became a symbolic flashpoint: is political speech now vulnerable to violent suppression? In the wake of his death, some individuals were disciplined or lost employment over commentary about his assassination, raising thorny questions of retaliation, public employee speech, and permissible censorship in charged political contexts.

Not long after, late-night comedian Jimmy Kimmel made on-air remarks referencing Kirk’s death, prompting backlash. ABC/Disney suspended Jimmy Kimmel Live! and pulled it temporarily amid pressure from affiliate broadcasters. When Kimmel returned, he delivered a remorseful monologue, stating he never intended “to make light of the murder of a young man” and acknowledged that some had found his remarks offensive. Though he did not issue a full apology, he expressed understanding of the outcry. The return show drew strong viewership despite being blacked out in some markets. The Federal Communications Commission (FCC) Chairman Brendan Carr was criticized during this time for putting pressure on TV networks to drop Kimmel, though Carr denies this and claims that his comments on the matter were taken out of context.