American Bar Association
Recent events, including an executive order on flag burning and comments and actions from elected and appointed officials with respect to comic material on broadcast television, have raised the specter of First Amendment violations.
The constitutional protection for free speech is not absolute and principally constrains government regulation of private speech. Restrictions imposed by private entities, such as broadcast media corporations, usually do not implicate the First Amendment. Complexity arises when the government, which regulates aspects of broadcast media corporations under the charge of the Federal Communications Commission, engages in commentary that would suggest a conditional arrangement between broadcast content and access to airwaves.
While there is no one-size-fits-all test for deciding whether a speech regulation complies with the First Amendment, there are multiple Supreme Court precedents that speak to different standards.
The Supreme Court ruled in the 1963 case Bantam Books v. Sullivan that the government cannot make threats that influence speech and has upheld that decision in subsequent rulings. In 2024’s NRA v. Vullo ruling, the Supreme Court ruled that government officials cannot coerce or pressure private parties to punish or suppress views the government disfavors. Justice Sonia Sotomayor wrote for the Supreme Court in a unanimous ruling in the case that, “The critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech.”
In Texas v. Johnson (1989), the Supreme Court ruled that flag burning is a form of “symbolic speech” protected by the First Amendment. After Congress tried to pass legislation banning flag burning a year later, in United States v. Eichman, the justices invalidated the law and enshrined flag burning with First Amendment protection.
The Supreme Court also has ruled that “hate speech” is generally protected. In a series of decisions — Brandenburg v. Ohio (1969), Snyder v. Phelps (2011) and Matal v. Tam (2017) — the court decided that speech that merely advocates violence but not likely to produce immediate violence is protected. The court also ruled that the First Amendment protected the right of individuals to express extremist views, even in highly sensitive contexts like military funerals. In Matal v. Tam, the justices unanimously reaffirmed that there is no “hate speech.”
Speech between individuals or on social media that is not controlled or influenced by the government does not fall under First Amendment protections. Private individuals, businesses or organizations are not prevented from imposing their own restrictions on speech. While the government cannot generally regulate private speech, some types of harmful speech — defamation, true threats, criminal activity — are not protected by the First Amendment.
Freedom of speech is a foundation of our democracy. Attacks on free speech by the government need to be carefully scrutinized. We must remain vigilant against laws or regulations that can be too broad or too vague and thus have a chilling effect on constitutionally protected free speech.
The American Bar Association encourages dialogue as protected by the First Amendment, underscoring that free speech is a concept grounded in Constitutional law and defined by centuries of legal precedent.
(https://www.americanbar.org/news/abanews/aba-news-archives/2025/09/freedom-of-speech-bedrock-constitutional-principle/)
Recent events, including an executive order on flag burning and comments and actions from elected and appointed officials with respect to comic material on broadcast television, have raised the specter of First Amendment violations.
The constitutional protection for free speech is not absolute and principally constrains government regulation of private speech. Restrictions imposed by private entities, such as broadcast media corporations, usually do not implicate the First Amendment. Complexity arises when the government, which regulates aspects of broadcast media corporations under the charge of the Federal Communications Commission, engages in commentary that would suggest a conditional arrangement between broadcast content and access to airwaves.
While there is no one-size-fits-all test for deciding whether a speech regulation complies with the First Amendment, there are multiple Supreme Court precedents that speak to different standards.
The Supreme Court ruled in the 1963 case Bantam Books v. Sullivan that the government cannot make threats that influence speech and has upheld that decision in subsequent rulings. In 2024’s NRA v. Vullo ruling, the Supreme Court ruled that government officials cannot coerce or pressure private parties to punish or suppress views the government disfavors. Justice Sonia Sotomayor wrote for the Supreme Court in a unanimous ruling in the case that, “The critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech.”
In Texas v. Johnson (1989), the Supreme Court ruled that flag burning is a form of “symbolic speech” protected by the First Amendment. After Congress tried to pass legislation banning flag burning a year later, in United States v. Eichman, the justices invalidated the law and enshrined flag burning with First Amendment protection.
The Supreme Court also has ruled that “hate speech” is generally protected. In a series of decisions — Brandenburg v. Ohio (1969), Snyder v. Phelps (2011) and Matal v. Tam (2017) — the court decided that speech that merely advocates violence but not likely to produce immediate violence is protected. The court also ruled that the First Amendment protected the right of individuals to express extremist views, even in highly sensitive contexts like military funerals. In Matal v. Tam, the justices unanimously reaffirmed that there is no “hate speech.”
Speech between individuals or on social media that is not controlled or influenced by the government does not fall under First Amendment protections. Private individuals, businesses or organizations are not prevented from imposing their own restrictions on speech. While the government cannot generally regulate private speech, some types of harmful speech — defamation, true threats, criminal activity — are not protected by the First Amendment.
Freedom of speech is a foundation of our democracy. Attacks on free speech by the government need to be carefully scrutinized. We must remain vigilant against laws or regulations that can be too broad or too vague and thus have a chilling effect on constitutionally protected free speech.
The American Bar Association encourages dialogue as protected by the First Amendment, underscoring that free speech is a concept grounded in Constitutional law and defined by centuries of legal precedent.
(https://www.americanbar.org/news/abanews/aba-news-archives/2025/09/freedom-of-speech-bedrock-constitutional-principle/)
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