First Amendment things to knowFirst Amendment graphic at johnbandler.com

by John Bandler

First Amendment Q&A

  • What is the highest law in the U.S. regarding government's restriction of speech and expression?
    • The First Amendment of the U.S. Constitution
  • What does the First Amendment protect against?
    • The First Amendment is a limit on the powers of government to restrict speech, expression, and religion.
  • The First Amendment was ratified in 1791, thus is couldn't possibly be applied to the complicated issues we face today regarding online speech. True/False
    • False
  • The First Amendment only says what Congress cannot do, but the the Executive and Judicial branches can do whatever they want. True/False
    • False
  • True/False: The First Amendment applies to any government action, not just to Congress.
    • True
  • True/False: The First Amendment applies to both criminal actions (by the government) and civil actions (overseen by the government.
    • True
  • True/False: John has a pretty helpful way to categorize speech and analyze it in the context of the First Amendment
    • True
  • True/False: John wrote a chapter on the First Amendment for his 2025 book on cyberlaw
    • True
  • What document contains the fundamental principles underlying all U.S. laws?
    • U.S. Constitution
  • Why are case decisions important?
    • They establish law, precedent (stare decisis)
  • What concept describes the weight given to a prior decision by a court?
    • Legal precedent (stare decisis, authority)
  • Describe what is meant by the phrase: "Free speech for me but not for thee"

The First Amendment

Here's the First Amendment (I added the line breaks to separate each phrase).

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.

Interesting 1st Amendment facts and conclusions by John

  • Ratified 1791
  • Word count: 45
  • Words unchanged since 1791 (232 years)
  • Number of words written since 1791 about what these 45 words mean?  Millions and probably billions!
  • The phrase "free speech" means totally different things to different people.
  • To be more precise, instead of talking about "free speech", first consider what the First Amendment protects.
  • The First Amendment protects from government limitations upon speech.
  • Government limitations upon speech could be criminal (e.g. an arrest and criminal prosecution based on speech or expression)
  • Government limitations upon speech could be civil (e.g. using the power of the civil courts to make someone pay money because of their speech or expression, such as in a defamation lawsuit (libel, slander).
  • One of my frequent corrections is reminding students to capitalize First Amendment, since it is a proper noun.

Speech categories and my diagramsFirst Amendment Free Speech 2026-01-03 Bandler's Categories

See my main article on the First Amendment or Chapter 10 of my Cyberlaw book for details and diagrams on these.

For now, let's just think of my categories.

First, think of these six categories.

  • All speech (any speech or expression)
  • Annoying speech (speech that annoys at least one person)
  • Unfriending speech (speech that annoys a person enough that they take some type of action, like their speaking, unfriending, boycotting, etc.)
  • Protected speech (speech that is protected by the First Amendment in some way)
  • Civilly actionable speech (a very small subset of the above, speech that someone could sue for and make the person pay money in damages)
  • Criminally actionable speech (a tiny, infinitesimal subset of the above, speech that could get someone arrested and prosecuted).

Within those categories, three relate to potential government consequence (or not):

  • Protected speech
  • Civilly actionable speech
  • Criminally actionable speech.

There is a seventh category we need to think about, but it is not directly related to law:

  • Influencing speech.

Disclaimer

These are short Q&As and summaries cannot be expected to capture all nuances of all terms or decisions.

Purpose of this page

This page is a study aid for my students, and a place for me to draw quiz and assignment questions from. The goal is for students to learn important concepts, especially foundational concepts that provide footholds for learning more complex concepts. See my article on scaffolding and learning (link below).

Links

This page is hosted at https://johnbandler.com/things-to-know-first-amendment, copyright John Bandler, all rights reserved.

Posted 11/28/2023 based on years of teaching. Updated 01/03/2026