Media Law for the Real World: The Basics of Free Speech
A simple guide to what the First Amendment protects — and what it doesn’t
If there’s one phrase we as Americans have mastered, it’s “free speech!”
We use it everywhere — in arguments, on TikTok, in group chats, when someone gets blocked, fired, criticized, or “canceled.”
But here’s the reality:
The First Amendment protects you from the government, not from consequences, criticism, or private companies.
This is called the State Action Doctrine.
Now that we’ve identified who the First Amendment applies to, let’s discuss what the First Amendment actually protects.
It applies to the government, not everyone else
This is a commonly misunderstood fact in free speech conversation.
The First Amendment restricts:
the government
public officials
public schools
public universities
law enforcement
It does not restrict:
social media platforms
private employers
private universities
malls and private venues
someone blocking your comment on social media
These are private actors, and they can make their own rules.
The First Amendment is a shield against government power only.
Political speech: the most protected form of speech
The First Amendment’s favorite child is political speech, meaning anything related to government, public issues, or civic life.
Here’s what’s protected:
criticizing elected officials
supporting unpopular candidates
marching in protests
wearing political clothing
advocating for controversial ideas
Why does political speech receive special treatment?
Because the government’s ability to punish dissent would defeat the entire purpose of a democracy.
This category gets the highest level of protection, and courts take it very seriously.
Symbolic speech: actions that communicate ideas
You don’t have to say a word for your speech to be protected.
I had a professor in college who taught this in an unforgettable way.
He stood at the front of the classroom, held up two middle fingers, and asked, “Am I saying anything?”
The class said no.
Then he followed up: “But am I saying something?”
We all laughed and said yes.
He nodded. “Exactly. That’s symbolic speech.”
The main takeaway was this: if an action communicates a message, it counts as “symbolic speech.”
Examples of symbolic speech are:
burning a flag
wearing a black armband
kneeling during the national anthem
expressive art
and, fortunately, the middle finger
Symbolic speech is protected just like spoken words. And that protection doesn’t disappear just because the message is uncomfortable.
Offensive and unpopular speech is still protected
This is one of the most unique features of America’s free speech model.
The First Amendment protects:
speech you find offensive
speech you find hateful
shocking or disturbing ideas
criticism that hurts feelings
viewpoints most people disagree with
Why?
Because letting the government decide which ideas are “too offensive” is far more dangerous than the ideas themselves.
The U.S. protects the content of speech, even when that speech is ugly.
*A note about the press
We’ll have a full separate post on press freedom, but for now:
The First Amendment protects the right to report, publish, investigate, criticize, and expose wrongdoing without government censorship.
The purpose of the media and journalism is to act as a watchdog on the government. This is to hold the government accountable and provide information to the public.
This protection is essential to a functioning democracy.
Yes, there are categories of unprotected speech
There are three key areas that the First Amendment does not protect:
true threats
incitement
fighting words
But here’s the thing:
Each category is narrow and they all deserve their own deep dive, which will be the topic of future posts.
Think of today’s post as laying the foundation.
We’ll build the rest of the house throughout this series.
Want to make a difference? Start here!👇
Now that you know the basics, here’s how to put it into practice:
support local journalism and transparency
understand who and what the First Amendment protects (you’ve learned this today!)
teach someone else what you’ve learned