The First Amendment and Freedom of Speech

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Franz Wilhelm Seiwert (1894–1933)
[Public domain],
via Wikimedia Commons


The First Amendment to the United States Constitution guarantees freedom of speech and expression. Restricting government interference, it provides, “Congress shall make no law . . . abridging the freedom of speech . . . .” U.S. Const. amend. I. Originally limiting the grant of enumerated powers to Congress in Article I, courts also apply the First Amendment to the States. Gitlow v. New York, 268 U.S. 652 (1925) (incorporating freedom of speech into the Fourteenth Amendment).

This limits ‎federal and state control over speech in the “public forum.” Including places like sidewalks, streets, and other publicly owned areas, the law secures the right to communicate ideas in these places.

The Core First Amendment Freedom

All laws concerning speech must be content and viewpoint ‎neutral. Statutes must not state, imply, or intend to regulate speech ‎based on a disagreement with its message or idea. Thus, the law prohibits government from regulating what one says in public.

Permissible Government Regulation

The First Amendment, however, does not prohibit regulation of the ‎surrounding circumstances in which speech occurs. Although the Constitution prohibits the power ‎to regulate what people say, it does not entirely curtail the power to police “the marketplace” of ideas.

Indeed, the law balances individual liberty with the government’s duty to protect the health and ‎safety of its citizens. As a result, the government may regulate the time, place, and manner of ‎protected speech—when, where, and how speech ‎may occur in a public forum.

Additional Limitations On Government Authority

Despite the power to regulate time, place, and manner, the law enshrines freedom of speech as a fundamental right. The power to regulate surrounding circumstances may effectively result, intentionally or otherwise, in restricting what one says. Therefore, the First Amendment limits the extent to which the government may regulate when, where, and how communication may occur. These laws must be:
  1. be narrowly tailored to a legitimate, content-‎neutral government interest,
  2. be the least restrictive means of serving a given legislative ‎goal, and
  3. leave open ample alternative channels for communication.‎


This explanation illustrates the limitations on government power with respect to speech. Freedom of expression guarantees one will not suffer government sanctions based on what one communicates. Although the government may regulate when, where, and how one communicates, these regulations must not be overly broad with respect to either the government's purpose, as a means to serving the government's purpose, or the range of channels for communication.

NJ Criminal Defense Attorney Michael Smolensky, Esq., knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding freedom of speech.

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