Unprotected speech Summary

  • Last updated on November 11, 2022

Speech that, if it falls into one or more of several categories, is treated by the Supreme Court as entitled to no (or lessened) constitutional protection because of the harm to society such utterances may cause.

In Chaplinsky v. New Hampshire[case]Chaplinsky v. New Hampshire[Chaplinsky v. New Hampshire] (1942), the Supreme Court upheld the conviction of a Jehovah’s Witness who called a city marshal a “racketeer and a Fascist.” He was charged under a state law punishing offensive and derisive speech or name-calling in public. Writing for a unanimous Court, Justice Frank MurphyMurphy, Frank noted that there were limited classes of speech that could be prevented and punished without violating the Constitution. These classes included “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 the peace.” He noted that these classes of speech were not necessary for the expression of ideas and were of such little social value that any benefit they imparted would be outweighed by society’s interest in “order and morality.”First Amendment balancing

Justice Frank Murphy defined several classes of speech that are not protected by the Constitution.

(Library of Congress)

Justice Murphy’s approach has been characterized as a two-tier theory of the First Amendment. Socially valuable speech is protected, but certain categories are unworthy of constitutional protection. After Chaplinsky, as the Court became more sensitive to free speech issues, it emphasized narrowly and precisely defining these categories, as well as introducing into each of these categories (except obscenity) certain First Amendment exceptions.

Obscenity

In 1973 in Miller v. California[case]Miller v. California[Miller v. California], the Court announced its standard for obscenityObscenity and pornography. Writing for a five-justice majority, Chief Justice Warren E. Burger held that three requirements must be met to find material obscene. First, the average person, applying contemporary community standards, must find the material appealing to his or her prurient interest. Second, the material must depict sexual conduct in a patently offensive way. Third, material is obscene if, taken as a whole not simply focusing on isolated passages or pictures in, for example, a book or magazine it “lacks serious literary, artistic, political, or scientific value.” In short, obscenity is “hard core” pornography.

Although the Court found no First Amendment value in obscenity, it consistently held that not all sexual depictions or utterances were the equivalent of obscenity. Thus, in Sable Communications v. Federal Communications Commission[case]Sable Communications v. Federal Communications Commission[Sable Communications v. Federal Communications Commission](1989), the Court stressed that the government’s power to prohibit obscene speech does not extend to indecent speech. However, in other cases, the Court also recognized situations in which the government can ban profane or indecent language, including on television or radio broadcasts and at public elementary and secondary schools.

Words Against Others

LibelLibel is any false and malicious statement made for the purpose of defaming (injuring the good name or reputation) of a living person. If the statement is spoken rather than written, the offense is called slander. Prior to 1964, such false statements were understood as totally unprotected by the First Amendment, but in that year, in New York Times Co. v. Sullivan[case]New York Times Co. v. Sullivan[New York Times Co. v. Sullivan], the Court began a process of applying First Amendment standards to certain types of libel actions. In essence, if a libel action is brought by a public official or a public figure (such as a well-known film star), that plaintiff must demonstrate that the false statement was made with actual maliceActual malice, defined by the Court as knowledge of its falsity, or reckless disregard for truth or falsity.

Although Chaplinsky was not overruled, after that case, the Court never upheld a conviction solely for “fighting words” directed at public officials. In R.A.V. v. City of St. Paul[case]R.A.V. v. City of St. Paul[RAV v. City of St. Paul](1992), the Court held that bans on fighting words must be “content-neutral.” That is, a city cannot ban only certain categories of hate speech, such as that which is race- or gender-based. The First Amendment requires an all-or-nothing approach.

Incitement of Illegal Activity

Although not mentioned in Justice Murphy’s Chaplinsky listing, incitement to illegal activity was also traditionally considered unprotected speech. Much of modern First Amendment jurisprudence was developed in the context of speech advocating violent overthrow of the government, starting with Justice Oliver Wendell Holmes’s famous clear and present danger testClear and present danger test, enunciated in Schenck v. United States[case]Schenck v. United States[Schenck v. United States] (1919). The challenge for the Court, from the Red Scare of the 1920’s to the McCarthy era of the 1950’s and the protests of the 1960’s, has been to protect society’s interests while also protecting political advocacy by unpopular dissidents.

In Brandenburg v. Ohio[case]Brandenburg v. Ohio[Brandenburg v. Ohio] (1969), the Court put forward a standard that is highly protective of unpopular political speech and combines the best elements of the clear and present danger test with an approach first enunciated in the World War I era by Judge Learned Hand that focuses on the actual words of the speaker. According to the per curiam opinion in Brandenburg, the state may not “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 actions and is likely to incite or produce such action.” The Court reaffirmed its own earlier distinction between “mere abstract teaching” of the moral “propriety” or even “necessity” of resorting to force and violence, on one hand, and “preparing a group for violent action and steeling it to such action” on the other.

The Court also held that certain categories of speech, although not totally unprotected, may be entitled to lesser First Amendment protection. This group includes sexually explicit but nonobscene speech (in certain contexts), symbolic speech (communicative conduct such as marching, picketing, wearing arm bands, or burning a U.S. flag), and commercial speech (advertising and similar commercial expression).

Further Reading
  • Abraham, Henry J., and Barbara A. Perry. Freedom and the Court. 7th ed. New York: Oxford University Press, 1998.
  • Greenwalt, Kent. Fighting Words. Princeton, N.J.: Princeton University Press, 1995.
  • Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York: Random House, 1991.

Brandenburg v. Ohio

Censorship

Chaplinsky v. New Hampshire

Clear and present danger test

Commercial speech

First Amendment speech tests

Flag desecration

Libel

New York Times Co. v. Sullivan

Obscenity and pornography

Symbolic speech

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