Free speech in the USA: where the lines are drawn

America calls free speech a fundamental right, and it means it. Where the limits sit, for what historical reasons and with which tools, differs from what many Europeans know from home. If you live between legal systems, it pays to know where the lines are drawn.

1The starting point: the First Amendment

The First Amendment is short and strictly worded. Congress shall make no law abridging the freedom of speech or of the press: that is what the Bill of Rights says, ratified on December 15, 1791. The text contains no list of exceptions. Originally it bound only the federal government. In 1925, in Gitlow v. New York, the Supreme Court held that freedom of speech and of the press are among the fundamental rights the Fourteenth Amendment also protects against the states. Since then, the protection applies to the federal government, the states, counties and cities alike.

2Incitement to violence: the Brandenburg line

The most important limit in American law comes from Brandenburg v. Ohio, decided in 1969. The government may only ban advocacy of violence or lawbreaking when it is directed at inciting or producing imminent lawless action and is likely to do so. Teaching in the abstract that violence is morally justified stays protected. It only becomes a crime when the speech aims at an act within the next hour and can actually trigger it.

4Hate speech: the biggest difference

The First Amendment has no separate exception for hate speech. The Supreme Court made that clear in Matal v. Tam in 2017. Speech that demeans people on the basis of race, ethnicity, gender, religion, age or disability is hateful, the Court said, but the proudest boast of American free speech jurisprudence is that it protects the freedom to express the thought that we hate. In saying so, the Court drew on a phrase by Justice Oliver Wendell Holmes from 1929. The old category of fighting words from Chaplinsky v. New Hampshire (1942), words that by their very utterance inflict injury or tend to incite an immediate breach of the peace, still exists, but it is very narrow.

6The flag and national symbols: Texas v. Johnson

The best-known flag case comes from Texas. In 1989, in Texas v. Johnson, the Supreme Court overturned the conviction of a protester who had been punished under a Texas law against desecrating venerated objects because he had burned an American flag. If there is a bedrock principle underlying the First Amendment, the Court wrote, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable. And further: we do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that it stands for.

As early as 1943, in West Virginia State Board of Education v. Barnette, the Supreme Court ruled that no school may force children to salute the flag or recite the Pledge of Allegiance. If there is any fixed star in the American constitutional constellation, the Court said, it is that no official can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion. How naturally Americans still honor their flag is the subject of our article Patriotism and a sense of home in the USA.

7Who has to respect free speech: the state and private parties

One difference that often gets overlooked in everyday life is the question of whom the right actually binds. The First Amendment applies only to the government. In 2019, in Manhattan Community Access Corp. v. Halleck, the Supreme Court summed it up in one sentence: the Free Speech Clause constrains governmental actors and protects private actors. A private employer, a club, a church or a private company is not bound by the First Amendment, and being regulated by the government does not turn a company into the government.

8What this means for you as a European in America

The history of German Americans shows that America, too, had to fight for this freedom. After World War I, Nebraska banned teaching children in any language other than English before they had finished eighth grade. A teacher at a Lutheran parish school was convicted for teaching a ten-year-old to read in German. In 1923, in Meyer v. Nebraska, the Supreme Court overturned the conviction: the law was arbitrary in its application and violated the liberty guaranteed by the Fourteenth Amendment.

In practical terms, the comparison comes down to one thing: the law does not travel with you. What counts as protected speech in Texas can be a criminal offense in your home country, and the First Amendment does not protect you from the rules of your employer, your club or the platform you post on. If you live between countries, you should know where the line runs in each. And if you decide on a life in America, the first question to settle is the status you will live there under. The visa roadmap shows which visa route fits you and your family. To see how free speech fits into the bigger picture of American liberties, read our guide Freedom in the USA.

In short

• The First Amendment binds only the government, and the Supreme Court protects even hurtful and hateful speech; the limits are incitement to imminent violence, true threats and knowingly false statements of fact about public officials.
• Burning the flag is protected speech in the USA, while in Switzerland, for example, attacks on officially displayed national emblems can be a criminal offense.
• If you live between countries, the law does not come with you: the law of the place where you are always applies.

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