What Amendment Includes the Freedom of Speech?

Freedom of Speech is one of the five freedoms protected by the First Amendment of the United States Bill of Rights. These freedoms include speech, religion, press, assembly, and petitioning the government. As the First Amendment of the United States Constitution, these freedoms are some of the United States’ foundational principles.

When Was the Bill of Rights Written and Ratified?

The Bill of Rights was not an original aspect of the Constitution written at the first Constitutional Convention of 1787. Nevertheless, the absence of such a list of rights was a source of heated debate; the Federalists opposed including such a section, while the Anti-Federalists refused to support the Constitution and officially join the Union without formal protections against the formation of an oppressive governing body.

After four years of debate, a Bill of Rights written by James Madison and inspired by Thomas Jefferson was added to the Constitution. These first ten Amendments served to protect the people from abuse by the federal government, a situation in which the young country had just escaped by declaring its independence from Britain.

The Bill of Rights was accepted and ratified by three-fourths of the fourteen states in 1791. However, it was not until 1939 when the remaining three states of this original group symbolically ratified the Bill of Rights.

What Does the Freedom of Speech Protect?

As with the other Amendments found in the Bill of Rights, freedom of speech protects United States citizens from censorship and suppression by the federal government. The Amendment reads:

U.S. Constitution Amend. I: 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.

Under this Amendment, the federal government cannot suppress or restrict the speech of any United States resident. Because of this, residents have the right to express their personal opinions and beliefs without restriction, as well as:

  • Refuse to speak (West Virginia Board of Education v. Barnette) – however, this is not to be confused with the Fifth Amendment, which states that the federal government cannot force a person to speak on information that may be potentially self-incriminating.
  • Express their political views on school grounds (Tinker v. Des Moines)
  • Use offensive words when speaking on political matters to convey certain messages (Cohen v. California)
  • Contribute financially to political campaigns (Buckley v. Valeo)
  • Advertise products and services, albeit with restrictions (Virginia Board of Pharmacy v. Virginia Consumer Council)
  • Engage in symbolic speech, such as burning the flag (Texas v. Johnson)

However, this does not mean that anybody can say whatever they want without consequence. Freedom of speech does not give you the right to:

  • Incite violence (Schenck v. the United States)
  • Produce and distribute obscene materials, such as pornography (Roth v. the United States)
  • Burn draft cards to protest American involvement in warfare (the United States v. O’Brien)
  • Print articles in a school newspaper despite the objections of school administrators (Hazelwood School District v. Kuhlmeier)
  • Make obscene statements at school-sponsored events if you are a student (Bethel School District #43 v. Fraser)
  • Advocate for illegal drug usage at school-sponsored events if you are a student (Morse v. Frederick)

This Amendment was originally meant to restrict the federal government only. Because of this, it did not initially apply to state governments or private entities. However, during the 1990s, it gradually came to be applied to state governments as well. Originally, it was included in the Constitution to keep the political debate in the young nation largely unrestricted. Therefore, the speech that is primarily protected by the First Amendment is political debate and other forms of speech related to the government.

This also allows for large amounts of slander, accusations, and outright lies to be spread about political figures, as it is technically protected under the First Amendment.

Furthermore, private entities are not obligated to respect freedom of speech; an employer is allowed to impose non-disparagement clauses to keep its employees from speaking negatively about the company or its products, and non-disclosure agreements are common in modern contract law. Because none of the participating parties are part of or otherwise affiliated with government entities, there is no requirement for them to respect an individual’s freedom of speech.

Who Is Protected By the First Amendment?

The Bill of Rights was primarily written in order to protect U.S. citizens. U.S. citizens include:

  • Those who were born anywhere in the United States or its territories
  • Those who were born in a foreign country but underwent the naturalization process
  • Those who were born in a foreign country, but at least one of their biological parents is a native U.S. citizen
  • Those who were born in a foreign country but both biological parents underwent the naturalization process before the person in question turned 18

Technically, the Bill of Rights is meant to apply to non-citizens as well as citizens. According to multiple cases, such as Bridges v. Wixon, even non-citizens who reside in the United States have the right to freedom of speech. However, this does not include those on temporary student, work, or tourist visas, as well as those living in the United States illegally.

Despite the fact that political speech is the most important type of speech protected by the First Amendment, the political speech of undocumented immigrants leaves them susceptible to punishment that would otherwise be unacceptable for U.S. citizens.

For example, according to Turner v. Williams, undocumented immigrants could potentially be singled out and deported due to their political activities.

Free speech continues to be a tricky subject for non-citizens who are also residents of the United States. Because there is yet to be a concrete decision made by the Supreme Court which states that free speech also applies to undocumented immigrants, there is an inherent risk for immigrants who express their political opinions openly.


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