Rights that are “implicit in the concept of ordered liberty.” 
1 For example, in 1925 the Court recognized 
that the First Amendment protections of free speech and free press apply to states as well as to the federal 
government. 
2 In the 1960s, the Court selectively incorporated many of the procedural guarantees of the 
Bill of Rights. The Court also used the Fourteenth Amendment to extend substantive guarantees of the Bill 
of Rights to the states. Most recently, on February 20th, 2019 the Court incorporated the right to be free 
from excessive fines guarantee found in the Eighth Amendment to the states in Timbs v. Indiana, ___ U.S. 
___ (2019). 
 
First Amendment Limitations 
Under the First Amendment, Congress cannot create laws that limit individuals’ speech. The Court has 
recognized symbolic speech (for example, wearing black armbands) and expressive conduct (for example, 
picketing) as protected under the First Amendment’s guarantee that Congress shall not abridge freedom 
of speech.  The Court struck down a law banning flag burning. Texas v. Johnson,  491 U.S. 397 (1989). 
The Court upheld a local ordinance prohibiting public indecency when applied to business establishment 
wishing to provide totally nude dancing. Barnes v. Glen Theater, 501 U.S. 560 (1991). The Court has 
recognized political speech and commercial speech as protected by the First Amendment as well.  See, 
e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). The Court has, however, deemed 
some speech not worthy of protection, and consequently may be limited.  According to the Court, non-
protected speech includes libel and slander, fighting words, words that present a clear and present danger 
when spoken, obscenity and profanity. See, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) “There are 
certain well-defined and narrowly limited classes of speech, the prevention, and punishment of which have 
never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, 
the libelous, and the insulting or fighting words—those which by their very utterance inflict injury or tend 
to incite an immediate breach of peace.”  Similarly, the Court has said anti-hate crime statutes permissibly 
limit individuals’ speech to the extent they are directed at conduct rather than the content of the speech. 
See, e.g., Rav v. City of St. Paul, 505 U.S. 377 (1992) and Wisconsin v. Mitchell, 508 U.S. 476 (1993). 
The First Amendment limits Congress’s authority to legislate in the realm of religion as well.  Congress 
cannot make laws that either create a religion (these violate the Establishment Clause) or target and 
interfere with a person’s exercise of their own religion (these violate the Free Exercise Clause). Finally, the 
First Amendment guarantees that people have the right to freely associate and assemble with others. Thus, 
Congress cannot make laws that completely limit people’s ability to gather together peaceably. However, 
1. Palko v. Connecticut, 302 U.S. 319 (1937). 
2. Gitlow v. New York, 268 U.S. 652 (1925) 
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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