Freedom of Speech and Expression 101

The First Amendment to the U.S. Constitution protects freedom of speech, press, religion, and assembly and petition. The First Amendment reads as follows:

"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." (emphasis added)

The First Amendment is applicable not just to Congress and the federal government, but to state and local public officials and entities as well, including UC San Diego.
Protection of speech by the First Amendment is intended to encourage the free flow of ideas and to protect individuals whose speech may be considered unpopular or dissentious.

While the First Amendment is very broad in its application, there are certain types of speech and expression that are not protected by the First Amendment. Attempts to regulate these types of unprotected speech generally fall into one of two categories: "content regulations" and "conduct regulations."

Content Regulations

Some laws and policies are drafted with the intention of preventing the expression of specific ideas and messages. Such attempts to regulate content are presumptively impermissible. Still, there are certain—though very limited—types of speech that are not protected by the First Amendment and are subject to regulation. However, despite the above exceptions, the First Amendment protects virtually all speech, no matter how unorthodox, offensive, or distasteful. See, e.g., United States v. Eichman, 496 U.S. 310, 318 (1990); Texas v. Johnson, 491 U.S. 397, 414 (1989); Cohen v. California, 403 U.S. 15, 20 (1971). The categories listed above are extremely narrow, and courts will tend towards finding speech to be protected under the First Amendment, no matter how hateful or offensive it may be.

• Obscenity — Speech/materials may be deemed obscene (and therefore unprotected) if the speech meets the following (extremely high) threshold: It (1) appeals to the "prurient" interest in sex, (2) is patently offensive by community standards, and (3) lacks literary, scientific, or artistic value.
• Incitement — Activity or speech that advocates for producing 'imminent lawless action' and is likely to produce such action.
• Fighting words — Speech that is personally/individually abusive and is likely to incite imminent physical retaliation.
• Defamation — An intentional and false statement about an individual that is publicly communicated in written (called "libel") or spoken (called "slander") form, causing injury to the individual.
• Perjury — A knowingly false statement given under oath in court.
• Extortion — Obtaining property by wrongful use of force or fear.
• Harassment — A severe and pervasive course of conduct directed at an individual causing that person substantial emotional distress.
• True threat — A communicated intent to inflict death or great bodily harm to a person with an apparent ability to carry out the threat.
• False advertising — A knowingly untruthful or misleading statement about a product or service.
• Certain symbolic actions, if the actions are otherwise illegal.
  • Examples: Tagging/graffiti, littering, burning a cross on private property.
• Plagiarism of copyrighted material
• Child pornography 

Conduct Regulations

Certain laws and policies (such as the UC San Diego Policy on Free Speech, Advocacy and Distribution of Literature on University Grounds) regulate the conduct pertaining to speech and expression, including the time, place, and manner of the speech, regardless of the content or message. Conduct regulations are more frequently protected by courts than content regulations so long as they are “content-neutral,” i.e., they do not attempt to forbid the communication of specific ideas.

• Regulations involving conduct may include criminal violations as defined by state law, such as disturbing the peace or disorderly conduct.
• Examples of permissible conduct regulations may include:
  • Time: Limiting amplified sound to certain hours.
  • Place: Prohibiting demonstrations at the entrance of campus buildings.
  • Manner: Limiting the size of flyers or signs at posting locations.