Education Law

What Kinds of Expression Does the First Amendment Protect?

By E.A. Gjelten, Author and Editor
Public school students have a constitutional right to express their opinions in many different ways, from symbolic actions to social media posts. Still, free speech rights aren’t absolute.

The First Amendment to the U.S. Constitution protects the freedom of speech. But what exactly does “speech” mean? Over many years, the U.S. Supreme Court has considered which kinds of expression are and aren’t protected.

Speech Is More Than Talking

The right to free speech includes a wide range of methods that people use—beyond the spoken or written word—to express their beliefs, thoughts, ideas, opinions, and emotions, including:

  • not speaking (for example, refusing to pledge allegiance to the flag)
  • taking actions that show what you believe or think (often called “symbolic speech” or “expressive conduct”), like burning the flag, staying seated during the pledge of allegiance, or turning your back to a speaker at an assembly
  • displaying symbols like flags or crosses on clothes, jewelry, notebooks, or backpacks
  • wearing clothes that convey a message, and
  • creating and/or sharing songs, videos, images, dance, or theater.

Unprotected Speech

Even though freedom of expression covers a lot of territory, the First Amendment doesn’t protect certain kinds of speech, including:

  • true threats of violence
  • speech that’s likely to provoke violence (often called “fighting words”) or is meant to incite illegal action in the immediate future,
  • obscenity and child pornography
  • some types of defamation (telling or writing a lie about someone that hurts that person’s reputation).

These exceptions to free speech apply to students, along with everyone else. For instance, a school can suspend or expel a child who makes a believable threat to hurt a classmate or teacher, or even to carry out a school shooting. But students may also face school discipline for speech that doesn’t fit into one of these unprotected categories. (For more details, see our article on when schools can limit student expression.)

Questions for Your Lawyer

  • If my five-year-old child threatens to kill a classmate but isn’t capable of actually doing that, would that be considered a “true threat” that’s not protected free speech?
  • Can the school punish my child for writing a poem in English class about a student who shoots a teacher?
  • What if my child insulted a classmate who overreacted and started a fight? What turns an insult into “fighting words?”

Go to the main FAQ page on students’ freedom of expression.

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