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Ratified on December 15, 1791, the Freedom of Speech Clause was imposed as part of the Bill of Rights, the first ten Amendments to the Constitution. The clause, which was written alongside laws disclosing matters of establishing and exercising religion and the right to petition the government, is most basically understood to state that that the government cannot convict people or organizations on the basis of what they say or write. However, the First Amendment only protects citizens against government officials and agencies, not private corporations or individuals. Free speech is not a limitless right, but the Constitution never clearly defines its boundaries.
The ambiguity in the use of the terms “speech” and “press” have made the amendment susceptible to controversy, as the vast scope of interpretation of these regulations have resulted in political backlash as to what should be deemed acceptable or not. “Speech” also applies to circumstances of the Internet and most forms of expression. Symbolic speech is also protected, as seen in West Virginia State Board of Education v. Barnette (1943) which determined that forcing students to recite the pledge of allegiance violated their first amendment rights, and Texas v. John (1989) that determined that flag burning was not prohibited in the Constitution, and could not be punished.
In most circumstances, decisions on free speech are made based on past court cases and the history of governmental regulation. Political and symbolic speech are regularly safeguarded under the Constitution, as is hate speech. However, over time, specific categories were classified as “low-value”, establishing them as unprotected by the First Amendment. These categories have been deemed non-essential to expression of ideas, but what is within these categories is still subject to debate. Schenck v. The United States (1919) was the first Supreme court case to establish a “low value” category under the conditions of speech that created “clear and present danger”, after Schenck persuaded people to not join the war.
Following that, Chaplinsky v. New Hampshire (1942) deemed “fighting words,” face-to-face personal insults which are expected to instigate immediate fights, unprotected, although it is unclear whether Chaplinsky’s insults could actually incite a fight today. Defamation was instated as unprotected in 1964, after the New York Times was charged for containing minor inaccuracies in an ad about a public figure in New York Times v. Sullivan. Obscenity was initially established as unconstitutional under the First Amendment in Roth v. The United States (1957), claiming that Roth’s mailing of obscene content was “without redeeming social importance.”
Deciding these cases depends on whether one wants to uphold individual liberty or social order. Opinions on what should or is constituted as “low value” speech are still debated in the twenty-first century as the rise of new technology gives people the opportunity to say anything anonymously or with little consequence.