With the increasing, and exhausting, references made to the First Amendment, it is important know exactly when it applies and what it protects. The First Amendment provides that: “Congress shall make no law . . . abridging the freedom of speech[.]” U.S. Const., amend. I.

When it applies.

The First Amendment only applies to government – federal, state, or local – actions. Fundamentally, from a different perspective, the First Amendment is merely a restriction on the government. Through this lens, it is easier to understand when it applies and, more importantly, when it does not.

Consequently, while private actors, such as corporations, could potentially violate the principles at the very core of the First Amendment, private actors cannot, in actuality, violate the First Amendment. Manhattan Community Access Corporation v. Halleck, 139 S.Ct. 1921 (2019).

What it protects.

Generally, the Free Speech Clause prohibits the government from regulating private speech because of its message, ideas, or subject. United States v. Alvarez, 567 U.S. 709 (2012).  However, these restrictions are not absolute, and under certain circumstances, the government may place reasonable restrictions on speech. Some categories of speech – obscenity, fighting words, inciting imminent lawless action – are not protected under the First Amendment. Significantly, the Free Speech Clause does not make speech free from consequences.

Recent Developments.

On January 8, 2021, the Supreme Court of the United States granted review for a First Amendment case arising out of Pennsylvania. Mahanoy Area School District v. B.L. The issue before the Court is whether public school officials may regulate student speech that occurs off-campus. The issue originated from a Pennsylvania high school student who, after failing to make the varsity cheerleading team, was punished for posting offensive Snapchat stories. B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3d Cir. 2020).

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This article is for informational purposes only and does not constitute legal advice.