George W. Truett

Political speech receives more protection under the free speech clause of the First Amendment than other types of speech. Political speech includes more than just speech related to political office campaigns. It also includes advocacy on controversial issues. In this November 2012 photo, Republican volunteers work a phone bank in a get-out-the-vote effort in Minnesota — such phone calling is a form of political speech. (AP Photo/Jim Mone)

Political speech is the core type or category of speech that receives the greatest First Amendment protection.  While the text of the First Amendment makes no distinction among categories of speech, the U.S. Supreme Court has acknowledged that not all types of speech are treated the same.   Political or ideological speech is at the highest rungs on the First Amendment ladder.  

Political speech receives more protection than certain other categories of speech, most prominently commercial speech (or advertising) and sexual speech.   The U.S. Supreme Court declared in Mills v. Alabama (1966): “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.”   

What political speech is protected by First Amendment?

Political speech also certainly consists of speech that is critical of government officials.  In the landmark decision New York Times Co. v. Sullivan (1964), the Court held that such speech represented “the central meaning” of the First Amendment.  The Court also explained that the First Amendment protects a “profound national commitment that debate on public issues should be robust, uninhibited, and wide-open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”  

Political speech does not mean just speech by government officials or speech during a political campaign.  The Court also has explained in McIntyre v. Ohio Elections Commission (1995) that “handing out leaflets in the advocacy of a politically controversial viewpoint – is the essence of First Amendment expression.” 

Campaign finance laws can be viewed as limits on political speech

While political speech receives more protection than other types of speech – such as commercial speech or sexual speech – the government still may be able to regulate such speech if it meets the high level of strict scrutiny.   Content-based restrictions on speech – even political speech – are subject to strict scrutiny.   However, the Court has upheld a Florida provision barring judges from soliciting money for a judicial campaign even after applying strict scrutiny in Williams-Yulee v. Florida Bar (2015).  The Court also held in Burson v. Freeman (1992) that a Tennessee law barring campaign-related speech within 100 feet of polling places did not violate the First Amendment.  

While political speech receives the highest protection First Amendment jurisprudence, there is a difference between speech about public issues and contributing money to a campaign.   At times, the Supreme Court has upheld certain restrictions on spending in political campaigns.  On the other hand, in recent years, a defining feature of the Roberts Court has been the deregulation of campaign finance reform legislation, as shown in the line of cases associated with Citizens United v. FEC (2010).

Artificial intelligence and political speech

With the recent expansion of widely accessible artificial intelligence and other generative software programs, deepfakes of political figures and candidates have sparked concerns from state legislatures. Many states have passed laws making political deepfakes in elections illegal. However, the courts have overturned these laws citing overbreadth

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). 

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