LEARNING OBJECTIVES
- Define speech under the First Amendment.
- Identify five types of speech that can be governmentally regulated in spite of the First Amendment.
- Ascertain the constitutional parameters for statutes that criminalize speech.
The First Amendment states, in relevant part, “Congress shall make no law…abridging the freedom of speech.” Although this language specifically targets federal Congress, the First Amendment has been held applicable to the states by virtue of selective incorporation. 1 Most state constitutions have a similar provision protecting freedom of speech. 2
Freedom of speech has been the focus of countless judicial opinions. To summarize US Supreme Court precedent, the word speech has been interpreted to cover virtually any form of expression, including verbal and written words, pictures, photographs, videos, and songs. First Amendment speech also includes expressive conduct such as dressing a certain way, 3 flag burning, 4 and cross burning. 5
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