Reading the First Amendment strictly through a textualist lens it is understood that Congress cannot limit our speech, but the First Amendment does not say anything about companies limiting it, or even the Executive branch limiting our freedom of expression through an executive order.

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Since the First Amendment text is only about Congress's restrictions on making laws about speech, is the understanding that "we have the freedom of speech" based off of precedent set by courts?

  • Do you consider the view that property owners have an obligation to provide a soapbox to be "our modern understanding" – i.e. what do you take to be that modern understanding?
    – user6726
    Apr 2, 2019 at 1:43
  • 2
    While the narrow final question is within the scope of Law.SE, the overall thrust of the question about a national debate and our evolving cultures and norms has a better home at Politics.SE. Early precedents also drew on English legal and political culture in the 17th and 18th centuries which is also really better suited to Politics.SE or History.SE even though the sources used by the very early case law precedents does have a legal hook.
    – ohwilleke
    Apr 2, 2019 at 5:04
  • 1
    The line between history and law is typically drawn based upon what current practitioners of law are referring back to in order to decide cases. Most currently relevant First Amendment case law in the U.S. dates from WWI and more recently. The broader conceptual background that gave rise to the earliest First Amendment case law is now all but irrelevant except as a historical footnote.
    – ohwilleke
    Apr 2, 2019 at 5:42
  • 1
    @ohwilleke respectfully, although the law is governed by such historical precedent, the law and its precedent are still extremely relevant today and in the modern interpretation of the law. I do agree that the setup for this question is broad and I will work to fix future edits to better fit the scope of the site. Apr 2, 2019 at 5:42
  • 1
    @ohwilleke hopefully the edit addressed your concerns about the scope of the question and the place it holds on this site. Apr 2, 2019 at 6:27

3 Answers 3


Trivially, yes

The First Amendment was adopted on December 15, 1791.

Every time there has been a dispute about what it means that has gone to court since then, the judgement of that court has established, overturned or clarified precedent - that's what common law courts do.

The government can limit your speech

The Supreme Court has recognized categories of speech which receive lesser or no protection from the First Amendment. For example, inciting lawless actions, fighting words, true threats, obscenity, child pornography etc.

They have also determined that it doesn't limit the government's power to impose reasonable time, place or manner restrictions on speech. As Justice Holmes put it in Schenck v. United States (1918), "Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic."

It applies to parts of government which derive their power from Congress

Which is, in most cases, all government.

The executive actually has surprisingly little power granted by the Constitution (Article II, Section 2). All the other powers of the executive are technically delegated powers of Congress and are therefore subject to the First Amendment.

Similarly, only the Supreme Court draws its mandate without going through Congress Article III, Section 1) - all other courts are subject to First Amendment restrictions.

It only restricts government

The limitation is a negative one on the US Congress (and through incorporation, the states). It does not, of itself, restrict private actors who are free to restrict speech however they want within their own property, including both physical and online spaces.

It is open to the government to enact laws that would extend an affirmative right to free speech onto non-state actors (see Pruneyard Shopping Center v Robins (1980)), however, the Federal government has not done so and neither have most states.

  • 2
    Marsh v. Alabama is also interesting. 'The Court rejected that contention, noting that ownership "does not always mean absolute dominion."'
    – Alexander
    Apr 2, 2019 at 5:37

@Alexander noted Marsh v. Alabama in a comment on another answer. I'll expand here as it is relevant to the part of your question that mentions companies.

Briefly, Chickasaw Alabama was a company town where the streets were owned by the company. A Jehovah's Witness tried to distribute leaflets and was arrested for trespass when she refused to stop. The US Supreme Court found in her favour. From the Wikipedia article:

The State attempted to analogize the town's rights to the rights of homeowners to regulate the conduct of guests in their home. The Court rejected that contention, noting that ownership "does not always mean absolute dominion." The court pointed out that the more an owner opens his property up to the public in general, the more his rights are circumscribed by the statutory and constitutional rights of those who are invited in.

In its conclusion, the Court stated that it was essentially weighing the rights of property owners against the rights of citizens to enjoy freedom of press and religion. The Court noted that the rights of citizens under the Bill of Rights occupy a preferred position. Accordingly, the Court held that the property rights of a private entity are not sufficient to justify the restriction of a community of citizens' fundamental rights and liberties.

It will be interesting to see how this plays out in a world where Facebook and Twitter are the equivalent of a privately owned street in a company town.


It appears that you are asking about the idea that the right of free speech in the United States prohibits social media companies from limiting their users' speech. It also appears that you are asking whether this aspect of free speech was established by court precedent. If either of these is incorrect, please advise in a comment.

The answer to that question is no. This aspect of freedom of speech was not established by court precedent, nor was it established by any other means, because it does not exist in US law. This idea of free speech is incorrect, a fundamental misunderstanding. Social media companies, private universities, other private organizations, and private people generally are not required to give others a platform to say whatever they want. On the contrary, they have a right not to be compelled to do so, which is a manifestation of their own right to freedom of speech.

On the other hand, if we look at "the understanding that 'we have the freedom of speech'" as it exists in the US legal system, then the answer to that question is yes, although the reason for that answer is mostly trivial and unsatisfying: any element of the constitutional right of free speech that is not evident from the text of the constitution must necessarily have been established by court precedent.

  • The aspect of social media companies in my question was just an example, but your second observation hit the nail on its head, I'm looking for where the idea of "free speech" or the idea that people have the right to say whatever they wish comes from, I have nothing against the idea of "freedom of speech", but by reading the text of the first amendment I'm unsure how the idea that we have the "freedom of speech" was reached. The only conclusion that I can reach from reading the text is that Congress can't make laws about speech, religion, ect.. Apr 4, 2019 at 15:04
  • @StephanS I'm not sure I understand entirely. Are you more interested in how "Congress shall make no law...abridging the freedom of speech" was generalized to "no part of the government may restrict freedom of speech"? Or are you more interested in the limits of the prohibition against restricting speech? Rereading your question, I think it's not entirely clear because it's asking about "the understanding that 'we have the freedom of speech,'" but not everyone has the same understanding of what freedom of speech actually means.
    – phoog
    Apr 4, 2019 at 15:33

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .