What the First Amendment Really Protects

The First Amendment is a cornerstone of American democracy. It allows us to express our views, challenge authority, and engage in public debate. In recent years, however, these freedoms have come under intense scrutiny; from debates over protests on college campuses to concerns about government retaliation against journalists and activists. Understanding what the First Amendment protects is more important than ever.

Today, Americans face new challenges to free expression: increasing restrictions on the right to protest to government censorship, and limits on free speech in schools and on campuses. Immigrants, students, and public employees have all faced threats to their rights, highlighting the need to stay informed about what the Constitution guarantees.

We know you have questions. Below, you’ll find answers to some of the most pressing questions we’ve received about the First Amendment in our series “Your Questions Answered.”

Hanna Stolzer/ACLU

The First Amendment safeguards five core freedoms: speech, press, religion, assembly, and petitioning the government. It not only protects your right to say what you believe – it protects your right not to be forced to agree with something you disagree with. These rights apply to popular opinions and unpopular ones alike.

Importantly, the First Amendment protects citizens from government censorship, but it does not apply to private actors like employers or social media companies. This means a private company can legally fire an employee for their speech, a consequence that would not be permissible if the employer were the government.

Schools are largely considered to be a place where speech is protected. In the 1960s, when a high school tried to punish students for wearing armbands to protest the Vietnam War, the Supreme Court in Tinker v. Des Moines Independent Community School District ruled that the protest could continue as long as it wasn't disruptive because students don't lose their First Amendment rights in school.

Non-citizens in the United States have First Amendment rights and those rights protect against punishment or retaliation (including through deportation) for speech. But in reality, government agencies sometimes use other legal tools (like alleged/pretextual immigration violations) to silence dissent.

Mahmoud Khalil, a Palestinian lawful permanent resident and recent Columbia University graduate, was arrested by ICE agents because of his advocacy on Columbia’s campus. His past detention, and threatened deportation, violate his First Amendment rights and hinge on an unprecedented and unconstitutional application of a provision of the Immigration and Nationality Act referred to as the “foreign policy ground.”

“Hate speech” isn’t a legal category of speech in the United States, but in short, yes. The government cannot punish someone simply for expressing hateful views. Allowing the government to define what counts as “hateful” opens us up to the government classifying anything it doesn’t like as hate. Moreover, political speech often includes heated rhetoric or speech that some may consider hateful. However, where speech constitutes harassment, true threats, or incitement to violence, it is not protected.

Recently, the University of Florida defended its decision to expel law student Preston Damsky over a series of antisemitic social media posts, asserting that his comments disrupted the educational environment. The case will test if the disruption standard – developed under Tinker – is appropriate in higher education, where the ACLU believes there must be a higher standard to protect the free expression rights of adults.

The First Amendment restricts government censorship, not rules set by private companies or employers. That means private platforms, employers, or TV networks can set their own rules about what employees or users can say, as long as those rules are made free from government interference or pressure. But if a platform is going to operate like a global public square, we encourage it to take freedom of expression seriously.

Recently, Jimmy Kimmel was temporarily taken off the air after the government threatened to retaliate against ABC, his employer. Because the government pressured a private party to censor content, it raised serious First Amendment concerns.

A SLAPP (Strategic Lawsuit Against Public Participation) is when someone sues another to punish them for their speech, even if the case has no merit. The real goal is to make speaking out too expensive or risky by saddling people with legal fees just for using their voice.

In 2024, Columbia University faculty voiced support for students’ right to protest during campus protests over the Israel-Palestine conflict and criticized the university’s authorization of police action against students. In response, several Columbia students filed a lawsuit against the faculty organization, claiming it should be held liable for Columbia’s decisions to move classes online, restrict access to campus, and cancel commencement. The ACLU argues the case is a clear SLAPP suit aimed at silencing protected speech.

Peaceful protest is protected. Blocking roads or refusing to disperse may lead to arrest, but even as the government might be able to restrict such activity, it can't target protestors for the viewpoint they’re expressing.

It’s important to remember that no matter what uniform they wear, law enforcement and military troops are bound by the Constitution, which means that our rights to peaceful assembly, freedom of speech, due process and safeguards against unlawful searches and seizures still apply and set important legal limits. For example, the ACLU of D.C. is representing a person who was arrested after protesting the National Guard members’ presence in D.C. by walking behind them while playing “The Imperial March” on his phone and recording. As Michael Perloff from ACLU of D.C. explains, “The government doesn't get to decide if your protest is funny, and government officials can’t punish you for making them the punchline. That’s really the whole point of the First Amendment.”

Yes — students do not shed their constitutional rights at the schoolhouse gate, and the First Amendment protects their ability to express opinions, even on controversial issues. However, schools are also responsible for maintaining a safe and orderly learning environment, which means they may impose reasonable limits on speech that substantially disrupts classroom activities, promotes violence, or targets others with threats or harassment. The challenge — and the legal battleground — often lies in determining where protected expression ends and actionable misconduct begins.

In Mahanoy Area School District v. B.L. (2021), the Supreme Court ruled that a Pennsylvania high school violated a student’s First Amendment rights when it suspended her from the cheer team for posting a Snapchat saying “Fuck school, Fuck cheer.” The court held that schools have limited authority to punish off-campus speech, reaffirming strong protections for students’ free expression outside school grounds.

Academic freedom is a “special concern” of the First Amendment that allows professors and scholars to research and debate freely, without government interference.

In 2022, Florida educators and students challenged the “Stop W.O.K.E. Act,” arguing that its restrictions on teaching about race and gender violated the First and 14th Amendments by censoring academic speech and imposing vague, discriminatory standards. A trial court blocked the law in higher education. The case is still on appeal, but serves as a key test of whether public universities can remain spaces for open inquiry or be subject to government-controlled instruction.