What are the limitations of the first amendment regarding free speech?
Matthew Whittaker
Co-founder & CTO, Suped
Published 13 Jun 2025
Updated 16 Aug 2025
11 min read
The First Amendment to the United States Constitution is widely understood to guarantee the right to free speech. However, this freedom is not absolute and comes with specific limitations. Many people, including those in public office and those managing online platforms, frequently misunderstand or misapply these nuances. It's crucial to grasp that the First Amendment primarily restricts government actions, not those of private entities, and certain categories of speech receive little or no protection under the law.
Understanding these boundaries is essential for navigating legal and ethical considerations in communication, whether in public discourse or within digital environments. Just as your email deliverability can be impacted by content and acceptable use policies, so too is speech regulated by established legal precedents.
This article explores the specific limitations of the First Amendment, highlighting what types of speech are not protected and the critical distinction between governmental and private restrictions on expression. We'll delve into how these principles apply in various contexts, from online content to workplace policies.
Private versus government restrictions
One of the most fundamental aspects of First Amendment understanding is that its protections are generally directed at the government. This means Congress, state legislatures, and other governmental bodies cannot make laws abridging freedom of speech. However, this protection typically does not extend to restrictions imposed by private individuals or businesses.
For example, a private company, including an email service provider (ESP), is generally free to set its own content policies and terms of service. If you violate these terms, your content (or emails) might be blocked (or blacklisted, if you prefer that term) or filtered, regardless of whether your speech would be protected from government censorship. This is why understanding acceptable use policies is crucial for email deliverability. For more details on this, you can learn if your email is being blocked due to an acceptable use policy or content by private entities. Similarly, private workplaces can set speech rules for their employees, and violating them can lead to consequences, as the First Amendment doesn't grant a right to free speech within a private workplace. You can find more information about this distinction from the American Library Association.
This distinction is particularly relevant in the age of social media. While many public figures and citizens may claim First Amendment violations when their content is removed from platforms like X (formerly Twitter) or Facebook, these platforms are private entities. They are not bound by the First Amendment in the same way the government is, and can moderate content as they see fit based on their community guidelines. This means they can choose to remove content that they deem inappropriate or harmful without violating the constitutional right to free speech.
Categories of unprotected speech
While the First Amendment offers broad protections, it does not safeguard all forms of expression. Over time, the Supreme Court has identified several categories of speech that receive lesser or no protection, allowing them to be restricted by the government.
Incitement to imminent lawless action: This refers to speech that is intended to and is likely to produce immediate illegal activity. The classic example is falsely yelling "fire!" in a crowded theater, causing panic. Incitement is a crucial distinction, separating protected advocacy from unprotected calls for violence.
Defamation (libel and slander): False statements of fact that harm someone's reputation are not protected. This includes written defamation (libel) and spoken defamation (slander).
Obscenity: Defined by the Miller test, obscene material is not protected. This is a narrow category, primarily focused on sexually explicit content lacking serious literary, artistic, political, or scientific value. For more on this, you can review the United States free speech exceptions.
True threats: Speech that communicates a serious intent to commit an act of unlawful violence to a particular individual or group is not protected. This differs from political hyperbole or jokes.
Fighting words: Words that, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. This category is very narrowly defined.
Child pornography: This is entirely unprotected speech due to the harm it inflicts upon children.
Fraud: Deceptive statements made to induce someone to part with something of value are not protected.
It's important to note that while hate speech can be offensive and repugnant, it is generally protected under the First Amendment unless it falls into one of these specific unprotected categories, such as incitement or true threats. The government typically cannot restrict speech based simply on its content or viewpoint.
Time, place, and manner restrictions
Beyond content, speech can also be regulated in terms of its time, place, and manner. These restrictions are permissible as long as they are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication.
For instance, a city might restrict the time during which protests can occur in residential areas to prevent noise disturbances, or limit the placement of signs in public parks to maintain aesthetics. These rules apply equally to all speakers, regardless of their message. However, the government cannot discriminate based on the viewpoint of the speech, even in these contexts.
Additionally, the context in which speech occurs plays a significant role in its protection. Speech in public forums like parks and streets generally receives the highest protection, while speech in non-public forums, such as government workplaces or military bases, may be subject to greater restrictions. This also extends to certain professional contexts, where specific regulations might apply.
Digital content and email deliverability
In the digital realm, the principles of free speech and its limitations intersect with email deliverability. While the First Amendment protects you from government interference with your speech, it doesn't protect you from the consequences of that speech, especially when it comes to private email providers. This is a critical distinction that many senders overlook.
Email service providers (ESPs) and Internet Service Providers (ISPs), such as Google or Yahoo, are private entities that set their own rules for email content and sending behavior. These rules often go beyond the legal minimums established by laws like CAN-SPAM. For instance, if you use offensive words in a sender email address, or if your email content contains phrases considered spammy, even if not illegal, it can significantly affect your deliverability. This is because these private companies maintain their own blocklists (or blacklists) and filtering systems to protect their users from unwanted or harmful emails. If your emails are consistently hitting spam folders, it's a sign you might be violating these private policies, not necessarily the First Amendment.
Getting put on an email blocklist means your messages won't reach inboxes, impacting your communication and business operations. Understanding how email blacklists work, and monitoring your domain reputation is vital to ensure your legitimate emails land in the inbox. This highlights a practical limitation: while you may have the right to express something, a private entity might choose not to transmit or host it, and that's generally within their rights.
Content filtering issues can be complex, and they often involve private policies rather than constitutional law. Maintaining a positive sender reputation and adhering to best practices helps avoid issues with ISPs and ESPs. Additionally, legal and deliverability implications arise when including promotional content in transactional emails, further illustrating the need for careful content management.
Speech and its consequences
The First Amendment does not grant individuals the right to communicate serious threats of bodily injury or death to others. Nor does it protect speech that incites imminent violence, defamation, or other forms of harmful expression. It is a common misconception that free speech means you can say anything without consequences. The distinction lies in whether the consequences come from a governmental body (which the First Amendment restricts) or a private entity or individual (which it generally does not). The First Amendment protects freedom of expression, but not all types of speech equally.
For example, while expressing a political opinion is protected, making a credible threat against a public official is not. Similarly, while criticizing a business might be protected, spreading false information that damages its reputation (defamation) is not. These lines are drawn to balance individual liberties with public safety and the rights of others.
In the context of online communities and content moderation, this means platforms often enforce policies against harassment and public shaming, not as a First Amendment violation, but as a necessary measure to maintain a positive environment. These policies are akin to threading rules enforced in a community to ensure order and respect among members. The challenges and legal risks of maintaining a public spammer list further illustrate the complex interplay between legal rights and community standards in digital spaces. These actions are typically undertaken by private entities to manage their platforms, not by the government seeking to suppress speech.
Views from the trenches
Best practices
Always distinguish between government restrictions and private platform policies.
Understand that certain types of speech, like incitement and true threats, are not protected.
Familiarize yourself with the terms of service for any private platform you use.
Ensure your content aligns with community guidelines to avoid private moderation.
Educate yourself on unprotected speech categories to avoid legal repercussions.
Common pitfalls
Assuming all speech is protected from all consequences, regardless of context.
Confusing private platform content moderation with government censorship.
Ignoring platform-specific content rules, leading to account suspension or content removal.
Believing the First Amendment applies equally in private workplaces as public forums.
Failing to recognize that incitement or defamation are not protected speech.
Expert tips
For senders, consistent adherence to recipient ISP and ESP guidelines is crucial. Even if legally permissible, content that triggers spam filters will affect deliverability.
Regularly review how your communications align with both legal standards and private platform policies, especially for marketing and community engagement.
When dealing with content that might be borderline, consult legal counsel or platform guidelines to ensure compliance and prevent negative consequences.
Remember that your right to speak doesn't guarantee a platform or an audience. Private companies can limit distribution.
The First Amendment doesn't protect you from the social or professional repercussions of your words.
Marketer view
Marketer from Email Geeks says the extent to which the First Amendment is misunderstood by public figures and social media managers is truly surprising.
2022-11-05 - Email Geeks
Marketer view
Marketer from Email Geeks says the misapplication of free speech principles might be intentional rather than just a misunderstanding.
2022-11-05 - Email Geeks
Navigating the boundaries of free speech
The First Amendment to the U.S. Constitution is a cornerstone of American liberty, but it is not a blanket license for unrestricted expression. Its primary role is to protect citizens from government censorship, ensuring a marketplace of ideas where viewpoints can be openly debated. However, this protection is not absolute.
Understanding the limitations, such as unprotected speech categories and the crucial distinction between government and private actions, is essential for responsible communication. Whether you are navigating online communities, managing email campaigns, or simply engaging in public discourse, being aware of these boundaries helps ensure your message is effective and compliant.
By recognizing these nuances, individuals and organizations can better understand their rights and responsibilities in the complex landscape of free speech, avoiding pitfalls that could lead to legal repercussions or hinder their ability to communicate effectively.
X (formerly 
Twitter) or 
Facebook, these platforms are private entities. They are not bound by the First Amendment in the same way the government is, and can moderate content as they see fit based on their community guidelines. This means they can choose to remove content that they deem inappropriate or harmful without violating the constitutional right to free speech.
Google or 
Yahoo, are private entities that set their own rules for email content and sending behavior. These rules often go beyond the legal minimums established by laws like CAN-SPAM. For instance, if you use offensive words in a sender email address, or if your email content contains phrases considered spammy, even if not illegal, it can significantly affect your deliverability. This is because these private companies maintain their own blocklists (or blacklists) and filtering systems to protect their users from unwanted or harmful emails. If your emails are consistently hitting spam folders, it's a sign you might be violating these private policies, not necessarily the First Amendment.
