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Freedom of speech is addressed in the First Amendment to the Constitution:
Amendment I
"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."
This Amendment was also applied to the states under the Fourteenth Amendment Equal Protection clause (they cannot make unconstitutional laws infringing free speech).
The Bill of Rights does not confer absolute and unconditional freedom of expression; there are certain types of speech, such as defamation, slander and libel (under most circumstances) and perjury that are not protected under the Constitution.
Other restrictions apply to speech that incites people to break the law. The Supreme Court held in Bradenburg v. Ohio,(1969) that speech creating imminent danger to others is not protected under the First Amendment.
The Court set the Brandenburg standard as the result of a Ku Klux Klan parade and rally held in that town. Ohio charged the group's leader, Clarence Brandenburg, with advocating violence under Ohio's Criminal Syndicalism statute because of the hate speech, racial and ethnic epithets, for advocating violence, and for assembling a group for the purpose of "teaching criminal syndicalism."
Brandenburg was found guilty in the Ohio courts, but the US Supreme Court overturned his conviction and nullified Ohio's criminal syndicalism statute as unconstitutional. The per curiam (unsigned) decision held that the government could not punish hate speech or abstract discussions of violence. According to the Court, the first amendment right can only be abridged if three elements of speech: "intent," "imminence," and "likelihood" create a situation resulting in "imminent lawless action" (for example, if the speaker intentionally motivates the listeners to break the law immediately and they do or appear ready to). Lawless action could take many forms: rioting, vandalism, committing hate crimes, etc.
The relevant part of the Brandenburg opinion reads:
"These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Case Citation:
Brandenburg v. Ohio, 395 US 444 (1969)
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