Since 1925, when the Supreme Court held that the First Amendment was applicable to the states through the due process clause of the First Amendment, courts have developed an enormous body of law distinguishing speech that can be regulated from speech that cannot. To take a few examples, the Supreme Court held that:
- Flag burning is symbolic speech and is protected by the First Amendment.
- Obscene material is not protected by the First Amendment if it appeals to the “prurient interest,” is “patently offensive as specifically defined by state law,” and “lacks a serious literary, artistic, or scientific value.”
- The government cannot issue a prior restraint, even to restrict the publication of classified information, unless the publication would cause inevitable, direct, and immediate harm to American forces. However, if a person illegally reveals classified information, the person can be prosecuted.
- There is no hate speech exception to the First Amendment. Hate speech, like fighting language, can be criminalized only when it directly incites imminent criminal activity.
No rights are absolute. In general, personal liberties are restricted when they will stifle important public discourse, trigger violence, or are likely to cause injury. As the adage goes, “Your freedom to swing your fist stops at my nose.”