Seven Free Speech Myths, From Hate Speech to Shouting Fire in a Theater

Every family has a constitutional scholar, and he is usually the one yelling at the television. "That's not protected speech!" he announces, with the serene confidence of a man who has never opened a law book. "You can't yell fire in a theater!" Meanwhile, his counterpart on the other side of the aisle is shouting back that the Constitution guarantees him a place on every platform and a job at every company, and that anyone who disagrees is a fascist. Both of them are wrong. Both of them are loud. The loudness is the only thing the two have in common.

I have a modest proposal: test the claims. Not against cable news, and not against the nearest meme, but against the Supreme Court's actual decisions. Seven of the most popular claims about free speech follow. Each gets stated fairly, checked against the record, and given a verdict. Conservatives should pay particular attention, because our side repeats several of these myths as often as the other side does.

Myth 1: "There is a hate speech exception to the First Amendment"

The claim. Speech that expresses hatred of a race, religion or group is not protected, and the government can ban it. Many Americans assume this because many other democracies do have hate-speech laws.

The test. The Supreme Court has said no. In R.A.V. v. City of St. Paul (1992), the court struck down a city ordinance that banned displays, such as a burning cross, that arouse anger on the basis of race, color, creed, religion or gender. The problem was that the city was punishing certain viewpoints and leaving others alone. In Matal v. Tam (2017), the court unanimously held that the government could not refuse to register a trademark because it was disparaging. Justice Samuel Alito's opinion put the point plainly: speech that demeans a group is hateful, but the proudest boast of our free speech tradition is that we protect the freedom to express the thought that we hate.

Now for the real limits, because they exist. Incitement to imminent lawless action is not protected, under Brandenburg v. Ohio (1969). True threats are not protected: in Virginia v. Black (2003), the court held that a state may ban cross burning done with the intent to intimidate. Harassment that amounts to conduct, in workplaces and on campuses, is regulated under separate laws, and that is a different question. What does not exist is a category called "hate speech" that the government can ban on the ground that it is hateful.

The verdict: myth. If you want the law to punish a viewpoint because it is hateful, you have to ask who gets to define hateful. The answer will be whoever wins the next election.

Myth 2: "You can't yell fire in a crowded theater"

The claim. The classic line used to end arguments: free speech has limits, and the limit is shouting fire in a crowded theater.

The test. The line comes from Schenck v. United States (1919). Charles Schenck, an official of the Socialist Party, mailed leaflets urging men to resist the draft in World War I. He was convicted under the Espionage Act of 1917. Justice Oliver Wendell Holmes wrote the opinion upholding the conviction, and in passing remarked that the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.

Look closely at what he said. The man is shouting falsely, and a panic results. And the line was not the rule of the case. It was an illustration in a case that locked up a man for handing out pamphlets against conscription. That is a poor advertisement for the doctrine.

The law moved on. Holmes himself began to move toward a more protective view later in 1919. In Brandenburg the court replaced the old approach with the incitement test: speech can be punished only if it is directed to inciting imminent lawless action and is likely to produce it. And as a practical matter, anyone who falsely shouts fire in a crowded theater can be punished under false-alarm and disorderly-conduct laws, which target the panic and the lie rather than the viewpoint.

The verdict: half-truth, widely misused. The fire-in-a-theater line is not the law, and it came from a case about anti-draft leaflets. It is mostly used to justify restrictions on speech that is nothing like a false cry of fire.

Myth 3: "The First Amendment protects me from being fired or banned"

The claim. If a company removes my post or fires me for my opinion, the First Amendment has been violated.

The test. The text begins, "Congress shall make no law," and the Fourteenth Amendment extends the restriction to the states. The First Amendment restrains government. It does not restrain private employers, private clubs or private websites. In Manhattan Community Access Corp. v. Halleck (2019), the Supreme Court held that a private entity operating a public access channel was not a state actor subject to the First Amendment. Government employees have some protection, but it is limited. Under Pickering v. Board of Education (1968), a teacher cannot be fired for speaking as a citizen on matters of public concern, but under Garcetti v. Ceballos (2006), statements made as part of official duties are not protected. A few states also have laws protecting employees from being fired for off-duty political activity, though those are statutes, not the First Amendment.

And there is a twist that conservatives need to hear. In Moody v. NetChoice (2024), the court recognized that when a platform curates a feed, it is engaged in expressive activity of its own. That cuts against the notion that the First Amendment forces a private platform to carry your post. The better arguments for regulating the platforms are policy arguments, and they are covered in Private Company Is Not the End of the Debate Over Platform Power and Section 230 Explained in Plain English, Down to the Twenty-Six Words.

The verdict: myth, but with an important caveat. The First Amendment is not the right tool for a dispute with your employer or a website. That does not mean those disputes do not matter. It means the answer lies in contracts, state law, competition and public pressure.

Myth 4: "If I'm criticized, boycotted or canceled, my free speech has been violated"

The claim. Speech with consequences is censorship.

The test. Criticism is speech. A boycott is speech. In NAACP v. Claiborne Hardware Co. (1982), the Supreme Court held that a boycott of white merchants in Claiborne County, Mississippi, organized to press for racial equality, was protected political expression. If the First Amendment protects a boycott by a civil rights group, it protects a boycott by a church group, and the consumer who stops buying a product because of the company's politics. The people who say "I'm just exercising my free speech" when they criticize someone are right. So are those being criticized.

But there is a version of this claim that is true, and it is where conservatives have the strongest argument. When the government pressures a private company to silence somebody, it is the government doing the censoring, whatever it calls the act. In National Rifle Association v. Vullo (2024), the court held unanimously that a government official cannot coerce private parties to punish or suppress speech the official disfavors. The case involved a New York financial regulator who allegedly pressured insurers and banks to cut ties with the NRA. The court said that if the allegations were true, the First Amendment had been violated. A separate case that year, Murthy v. Missouri, raised claims that federal officials had pressured social media companies about content, but the court disposed of it on standing and did not settle the merits.

The verdict: mostly a myth, with a crucial exception. Private criticism and private boycotts are speech, not censorship. Government pressure on private intermediaries is the real danger, and the courts have said so.

Myth 5: "False speech has no First Amendment protection"

The claim. Lies and misinformation are not protected, so the government may ban them.

The test. Some false statements are punishable: defamation, fraud, perjury and false statements to the government are examples. But the court has refused to hold that falsehood alone strips protection. In United States v. Alvarez (2012), the court struck down the Stolen Valor Act, which made it a crime to claim falsely that you had received a military medal. Six justices agreed that the law was unconstitutional, though they differed on the reasoning. A plurality warned that a general power to punish falsehood would give the government a dangerous tool, since it would let officials decide what is true.

Consider what the other result would have meant. A law letting the government punish "misinformation" would need somebody to decide what is misinformation. That somebody would be a government official in the administration of the day. Think about how comfortable you would be with that official's judgment on tax policy, a border policy or an election law if it was the other party's appointee.

The verdict: myth. Falsehood plus a recognized harm, such as defamation or fraud, can be punished. Falsehood alone cannot.

Myth 6: "The government can ban speech that offends enough people"

The claim. Speech that is vulgar, shocking or deeply offensive loses protection.

The test. In Cohen v. California (1971), a man named Paul Cohen walked into a Los Angeles courthouse wearing a jacket with a profane message about the draft. He was convicted of disturbing the peace. The Supreme Court reversed, with Justice John Marshall Harlan writing that one man's vulgarity is another's lyric. Offensiveness in the eye of the listener cannot be the test, because the listener's taste is not a constitutional standard. The same reasoning protected flag burning in Texas v. Johnson (1989) and the picketers in Snyder v. Phelps (2011), as the timeline in Eight Supreme Court Cases That Explain What the First Amendment Protects shows.

There is a narrow category called fighting words, from Chaplinsky v. New Hampshire (1942), meaning words likely to provoke an immediate violent reaction from the person addressed. The court has narrowed that category over the decades, and it does not cover a speaker whose message simply offends people at a distance.

The verdict: myth. If offense were enough, then every unpopular opinion would be one complaint away from a fine. Remember that the next time a crowd demands that something be banned. The crowd may be yours next year.

Myth 7: "Free speech means no limits at all"

The claim. The mirror-image myth, popular on our own side: the First Amendment protects everything, and anyone who admits limits is a censor.

The test. Not so. The court has long recognized certain categories that receive no protection or less: incitement under Brandenburg, true threats under Virginia v. Black, defamation, fraud, obscenity as defined in Miller v. California (1973), child sexual abuse material under New York v. Ferber (1982), and speech that is itself part of a crime, such as solicitation to commit a murder. Governments may also impose reasonable limits on the time, place and manner of speech, such as a noise rule or a permit requirement for a parade, provided they are content-neutral and leave open other ways to speak.

Defending free speech does not require pretending that these categories do not exist. It requires knowing where the lines are and insisting that they stay narrow. A good debater does not say "no limits." He says "these few, defined limits, and no more."

The verdict: myth. Free speech is robust, not infinite.

What the seven have in common

Look at the pattern. Most of these myths try to turn a dislike into a legal rule. "I hate that speech, so it must be illegal." "I got criticized, so my rights were violated." "That lie is dangerous, so the law can ban it." The Constitution says something less satisfying and more durable: the government does not get to decide which opinions are acceptable. People may argue, boycott, shame, fire, ignore or applaud each other as they see fit. Government may punish only a few narrow categories.

That is the bargain the founders struck, and it is why The Founders' Partisan Press Was Far Nastier Than Anything on Your Feed makes such good reading. If you are interested in the campus version of these myths, the companion piece is Seven Myths About Free Speech on Campus, Tested Against the Cases. And for the one case that every conservative critic of the press eventually bumps into, read Should New York Times v. Sullivan Be Revisited? The Case For and Against.

The bottom line

• There is no hate-speech exception in American law. The real exceptions are narrow: incitement, true threats, defamation, fraud, obscenity and a few more.
• The fire-in-a-theater line came from a 1919 case about anti-draft leaflets, and the incitement test in Brandenburg has replaced the logic behind it.
• The First Amendment restrains the government, not your boss or a website. When a private company silences you, the remedy is competition, contracts and public pressure, not a constitutional claim.
• Criticism and boycotts are speech. But when the government leans on private companies to silence people, that is censorship, and you should say so no matter which party is doing it.
• The next time you hear someone announce what is or is not "protected speech," ask which case he is relying on. If he cannot name one, he is probably repeating a myth.