Myths and Facts About Free Speech (Hoover Institution)

First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
What are the limits on free speech in America? What aren’t you allowed to say? And who is allowed to restrict
speech?

Myth: You can’t yell “fire” in a crowded theater.
FACT: This famous phrase is derived from the 1919 Supreme Court case Schenck v. United States, but the full
phrase is that “The most stringent protection of free speech would not protect a man in falsely shouting fire in
a theatre and causing a panic.” Justice Oliver Wendell Holmes, the author, was stating here that certain kinds
of false factual claims are punishable, at least when they have a tendency to lead to immediate physical harm.
But beyond this, the actual holding of that case has been sharply limited by later precedents. Schenck v. United
States introduced the “clear and present danger” test for when speech loses its constitutional protection, and
applied that test to uphold restrictions on anti-draft speech during wartime, on the theory that speech had a
tendency to cause draft evasion. But under the more recent Brandenburg v. Ohio precedent (1969), speech
may only be punished as incitement if the speaker (1) intends to cause (2) imminent lawless action and the
action is (3) likely to happen.
• “Someone should burn down theaters” would thus be protected speech.
• “Come with me to burn down the theater right now, and bring your torches” is not.

Myth: The government can restrict certain views if it does so only by regulating the time,
place, or manner in which they are expressed.
FACT: The government can impose reasonable time, place, and manner restrictions that are unrelated to the
content of speech, so long as such restrictions aren’t too burdensome. But it must apply those restrictions
uniformly to speech expressing different views. Indeed, it generally can’t discriminate based on subject matter,
let alone viewpoint.
Tennenbaum Program on Fact-Based Policy

Myth: You can be punished by the government for burning an American flag.
FACT: The law can’t target flag burning for special punishments, the Supreme Court held in Texas v. Johnson
(1989) and United States v. Eichman (1990). The First Amendment protects speech and symbolic expression
even when it expresses offensive and anti-American ideas. However, the government can evenhandedly apply
neutral laws to flag burning; for instance, someone who steals a flag and burns it can be punished for theft or
for vandalism. But the law has to be applied equally regardless of whether the person stole a flag or anything
else.

Myth: You’re allowed to exercise your free speech everywhere in America.
FACT: The First Amendment restricts the government but not private individuals or businesses. Its first words
are “Congress shall make no law,” and the Fourteenth Amendment, which starts with “No State shall” has
been read as extending that precept to state and local governments. Owners of private property, including
individuals or businesses, aren’t constrained by the First Amendment. There’s nothing unconstitutional about
restricting speech at your own dinner table, or in a shopping mall or workplace you own or operate, or in a
school or university you run. However, some state laws (and, to a modest extent, federal laws) do, in some
measure, limit the power of private employers, landlords, places of public accommodation, and educational
institutions to restrict speech by employees, tenants, patrons, and students; those rules differ considerably
from state to state.

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