Who has the power to abridge people’s freedom of speech? — Who can abridge free speech explained

What does “abridging freedom of speech” mean under U.S. law?

Under U.S. constitutional law, the phrase abridging freedom of speech most commonly refers to government action that limits expression. The First Amendment constrains federal and state actors when they act under color of law, and that constitutional limit does not automatically apply to private parties, according to a recent Congressional Research Service overview Congressional Research Service.

In practice, courts ask whether the challenged conduct is attributable to the state. This state action doctrine determines when private conduct becomes subject to constitutional rules. For a clear sense of the doctrine and its role in defining abridgement, readers can consult the same CRS overview, which summarizes key principles and examples Congressional Research Service.

When legal writers use the term abridge, they usually mean a restraint imposed by government power rather than private moderation or contract enforcement. That distinction matters because the constitutional right is phrased as a restriction on Congress and, through incorporation, on state action; Supreme Court opinions set out how courts draw that line, including the Brandenburg decision on limits to advocacy Brandenburg v. Ohio.

Which actors qualify as government actors and when does government abridge speech?

Government actors include federal, state, and local officials and agencies acting under color of law. When those officials make or enforce rules that limit speech, courts evaluate whether the action is governmental in nature and therefore an abridgement under the First Amendment. The CRS overview explains how courts identify government action for constitutional purposes Congressional Research Service.

Legislatures and state agencies can pass laws that regulate conduct, including rules that touch online platforms or speech. When a law seeks to compel or limit how private platforms moderate content, courts may apply First Amendment review and decide whether the law itself abridges speech. The Supreme Court addressed limits on some state laws that aimed to regulate platforms in its 2023 decision in NetChoice v. Paxton NetChoice v. Paxton. A Harvard Law School preview discusses the case and its implications Supreme Court preview: NetChoice v. Paxton.

Government may restrict speech in narrow, well defined circumstances. The leading test for advocacy that calls for illegal action is the Brandenburg incitement standard. Under that rule, advocacy may be punished only if it is directed to inciting imminent lawless action and is likely to produce such action, as explained in the Supreme Court opinion in Brandenburg v. Ohio Brandenburg v. Ohio.

That standard protects controversial or even offensive advocacy unless the speaker intends and is likely to cause imminent illegal acts. The test is protective of robust public debate, and it narrows the circumstances when government abridgement is permitted. If you want a primary source on the incitement test and its elements, the Brandenburg opinion is the controlling authority Brandenburg v. Ohio.

Brandenburg and the incitement standard

Categories of unprotected speech

Beyond incitement, courts recognize specific categories of speech that are not fully protected and may be regulated. These categories include obscenity, true threats, and fighting words, each evaluated under doctrines developed by the Supreme Court and summarized in neutral legal overviews Congressional Research Service.

These categories are narrow and fact specific. Courts typically conduct careful analysis before labeling speech as unprotected, and the presence of such categories helps explain when a government restriction will be treated as a constitutionally permissible abridgement. For accessible summaries of these categories, consult the CRS report Congressional Research Service.

Public employees and contractors: how speech protections differ

Public employees have qualified First Amendment protections when they speak on matters of public concern. The Supreme Court framed this balance in Pickering v. Board of Education, holding that courts must weigh the employee’s interest in commenting on public matters against the government employer’s interest in maintaining efficient public services Pickering v. Board of Education.

These protections are not absolute. Under the Pickering framework, a public employer can prevail if it shows that the employee’s speech would materially disrupt operations or undermine workplace discipline. For a plain description of the Pickering balancing test and how it applies to public sector disputes, see the CRS overview Congressional Research Service.

Private actors – employers, platforms and what they can do

Private employers and social media platforms generally set rules for speech on their property or services. Because the First Amendment limits government action, private moderation or private workplace rules are typically governed by contract law, employment law, anti discrimination statutes, or the platform’s own terms of service rather than by the First Amendment. This distinction is described in civil liberties summaries that explain what free speech protects and when it does not Free Speech: What it Protects and When It Does Not.

When a private actor restricts speech, affected people often pursue remedies outside constitutional law. Common paths include internal appeal processes at a platform, contract or tort claims, anti discrimination complaints, or labor law filings such as charges brought to the National Labor Relations Board for protected concerted activity NLRB guidance on protected activity.

Government attempts to regulate or compel private moderation change the analysis. If a state law or official directive requires or forbids specific content moderation, courts may evaluate the government role and treat the challenged measure as state action, as the Supreme Court addressed in NetChoice v. Paxton NetChoice v. Paxton. See the Oyez case page for background on the arguments and procedural posture NetChoice, LLC v. Paxton.

For private employers, labor law often provides distinct remedies. The NLRB has taken positions on when concerted employee speech about working conditions is protected, and the board’s procedures may be the appropriate route for many workplace disputes. For a practical summary of labor protections for concerted activity, see the NLRB guidance NLRB guidance on protected activity.

What to do if you believe your speech was abridged

The first step is to identify the actor. If the abridger is a government actor, the claim is likely a constitutional matter; if the actor is private, the claim typically proceeds under contract, employment, anti discrimination law, or labor law. The Congressional Research Service explains the practical implications of the government private distinction for remedies Congressional Research Service.

Document the incident carefully. Save screenshots, emails, policy pages, and any communications that explain why your expression was restricted. This evidence supports either an administrative complaint or a private legal claim, and it is often crucial when presenting a case to a board or court. Civil liberties groups provide checklists for evidence preservation and internal appeals Free Speech: What it Protects and When It Does Not.

If you believe a public official abridged your speech, options include filing a civil rights lawsuit, seeking a declaratory judgment, or using available administrative complaint processes. For public employee disputes, the Pickering balancing framework governs many cases and claim options may include internal personnel appeals followed by litigation if necessary Pickering v. Board of Education.

If the abridger is a private platform or employer, first use internal dispute resolution channels, then consider statutory remedies such as anti discrimination complaints or labor filings. For workplace concerted activity, the NLRB process is often the proper legal track; for content moderation disputes, contractual claims or consumer protections might apply NLRB guidance on protected activity.

Common misconceptions and legal pitfalls

Many people assume the First Amendment prevents private companies from moderating speech. That is incorrect in most situations. The constitutional restriction applies to government, not private moderation, and conflating the two is a common source of confusion. Neutral overviews explain that private moderation is generally not a First Amendment issue Free Speech: What it Protects and When It Does Not.

Another frequent pitfall is treating slogans about free speech as legal conclusions. Phrases that sound like rights do not automatically translate into enforceable legal claims. Checking primary sources such as Supreme Court opinions and neutral summaries helps clarify whether a particular claim has legal weight Congressional Research Service.

Procedural mistakes are also common. Missing administrative deadlines, failing to preserve evidence, or pursuing the wrong forum can doom an otherwise valid case. To avoid these errors, follow the documentation steps above and consult the specific complaint procedures that apply to your situation, for example NLRB filing requirements for labor complaints NLRB guidance on protected activity.

Emerging issues: platforms, state laws and the labor law intersection

Recent litigation and new statutes have raised questions about when government regulation of private platforms becomes state action. The Supreme Court’s NetChoice decision in 2023 limited some state attempts to dictate moderation decisions, illustrating how courts may treat state laws that appear to compel or restrict private platform choices NetChoice v. Paxton. NetChoice & CCIA provide background on the original litigation on NetChoice’s site NetChoice & CCIA v. Paxton.

At the same time, labor law is playing a growing role where moderation touches employee concerted activity. When workers use platforms to organize or discuss workplace conditions, the interplay between moderation, employer oversight, and labor protections can create complex legal questions best resolved through targeted filings or litigation under established labor rules NLRB guidance on protected activity.

These areas remain unsettled in several respects. Ongoing cases and legislative proposals will continue to shape how courts and regulators define the boundary between private moderation and state action. For cautious, up to date explanations of these trends, neutral legal summaries and primary cases are the most reliable sources Congressional Research Service.

Takeaways and where to find primary sources

In short, constitutional abridgement requires state action; private moderation or employer rules are generally governed by private law, labor law, or statutory regimes. That government private distinction is the central organizing rule for understanding who can abridge speech under U.S. law. The CRS report provides a concise framework for this distinction Congressional Research Service.

Key primary sources for further reading include the Supreme Court opinions in Brandenburg v. Ohio and Pickering v. Board of Education, the NetChoice decision on platform regulation, CRS overviews, civil liberties summaries, and NLRB guidance for labor related disputes. Consult those primary authorities to verify how rules apply to specific facts Brandenburg v. Ohio.