The First Amendment: Categories of Unprotected Speech
- Fighting Words
- Commercial Speech
- Cases in which freedom of speech is outweighed by an even more compelling interest
Incitement of people to commit illegal or lawless activity is not protected by the First Amendment. In a seminal 1919 case, Schenk v. United States, the Supreme Court announced the “clear and present danger” test; that is, speech is not protected when it is used “in such circumstances and… of such a nature as to create a clear and present danger that they will bring about substantive evils that [the government] has a right to prevent.” The opinion, written by Justice Oliver Wendell Holmes, also made the famous observation that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater.”
The standard for determining when speech was unprotected as incitement was clarified in a 1969 case, Brandenburg v. Ohio. In that case, Clarence Brandenburg, a KKK leader, held a KKK rally in rural Ohio in which he advocated “revengeance” against the government and certain minorities, as well as other incendiary comments. Convicted under a state statute that prohibited advocating violence, he was sentenced to a fine and a prison term.
The Supreme Court reversed his conviction. In so doing, the Court announced the “imminent lawless action” test for incitement. To be considered incitement and thus not protected by the First Amendment, incendiary speech must:
- Be intended to provoke imminent lawless action; and
- Be likely to cause such action.
As Brandenburg’s speech was not made in the presence of potential targets of his advocated violence, it was not likely to cause imminent lawless action. As such, reprehensible though his speech may have been, Brandenburg’s speech was protected by the First Amendment.
A similar category to incitement, the Supreme Court has also indicated that “fighting words” are not protected by the First Amendment. Fighting words means words which “would likely make the person to whom they are addressed commit an act of violence.” The classic example here comes from the 1942 case, Chaplinsky v. New Hampshire. Chaplinsky, during an altercation with a police officer, had shouted at him: "You are a God-damned racketeer" and "a damned Fascist."
Upholding Chaplinsky’s conviction, the Supreme Court ruled that “fighting words,” which “by their very utterance inflict injury or tend to incite an immediate breach of the peace” are unworthy of First Amendment protection. Writing for a unanimous court, Justice Murphy observed that “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
As a practical matter, it’s very difficult to write legislation that prohibits fighting words that is not “overbroad” or “vague,” as legislation seeking to prohibit fighting words cannot anticipate specifics or going into much detail. Legislation that is broad or vague enough to deter constitutionally protected speech or that is vague to the point that it does not reasonably explain to the public what is prohibited will be struck down.
Speech or expression that qualifies as “obscene” likewise is not afforded First Amendment protection, because it is considered of “low value.” While obscenity, by definition, appeals to “prurient” (or sexual) interest, not all sexual materials are considered obscene. In fact, not all hardcore pornography is considered obscene. In the landmark case Miller v. California,  the Court developed the test to determine whether speech is obscene. To be obscene the expression or speech must:
(1) To the average person, applying contemporary community standards, appeal to the prurient interest;
(2) Depict or describe, in a patently offensive way, sexual conduct, as specifically defined by the applicable state law; and
(3) Taken as a whole, lack any serious literary, artistic, political, or scientific value
All three elements are required for material to be considered obscene and therefore unworthy of First Amendment protection. The location and nature of the community matter. What may be offensive in Provo, Utah, may not be offensive in Las Vegas, Nevada. Moreover, the “establishing some redeeming educational, artistic, scientific, literary or political value” exception commonly removes patently sexual materials from the obscenity category. For example, diagrams or drawings in biology textbooks or paintings or statues displayed in museums are unlikely to be considered obscene, almost no matter what they depict.
Once something is considered obscene, it can be banned or restricted at the government’s discretion. Sexual materials, where not obscene (due to community standards or redeeming value) may not be banned, but may still be heavily restricted. For example, cities are empowered to set up “red light” districts wherein sexual displays and materials are confined to, even if those materials are not considered obscene. In Renton v. Playtime Theatres,  the Supreme Court held that government can impose zoning restrictions on adult businesses, confining them to remote areas. This is allowed because such zoning restrictions will limit the secondary effects of adult businesses, while allowing adequate channels for free expression.
Defamation is a false statement about another person that tends to damage the reputation of that person. It is unprotected by the First Amendment. While defamation is not typically punished as a crime, it is a tort in all jurisdictions. Defamed plaintiffs can and often do sue publishers of defamatory statements for heavy damages.
While defamation is inherently unprotected speech, the Supreme Court has recognized that some limitations on defamation actions are necessary to avoid having a “chilling effect” on media reporting of issues that are relevant to the public concern. Therefore, the Supreme Court ruled in the seminal case of New York Times v. Sullivan, that plaintiffs who are public officials wishing to sue news outlets must show “actual malice,” which, in this context, means that the defendant news outlet must have known that its statement was false or at least have acted with reckless disregard for the truth. This was later extended to all public figures.
Commercial speech, which means speech designed to sell products or services rather than to make political points or express political ideas, is not protected to the same extent as political speech. While political speech that is false cannot be punished (unless it is also defamation), commercial speech may be regulated or prohibited to ensure that it is truthful and not misleading to potential consumers. Moreover, commercial speech can be prohibited if it encourages illegal activity (as opposed to political speech encouraging illegal activity, which is protected unless it meets the definitions of incitement or fighting words that we discussed earlier).
Moreover, states may even regulate truthful advertising that does not promote illegal activities if:
(1) It serves a substantial government interest;
(2) It directly advances that interest; and
(3) It is not more extensive than necessary to achieve that interest.
In 44 Liquormart v. Rhode Island, Rhode Island had enacted a statute that banned the advertisement of retail liquor prices in stores that did not sell liquor. The lower court held that the ban was constitutional because open competition for liquor pricing would be harmful and could lead to increased consumption. The Supreme Court reversed, and held that the regulations were blanket bans on advertising that did not pass scrutiny. It failed the test because the regulations did not directly advance the government interest asserted.
Other Compelling Interests
No constitutional right is absolute as every right must give way to competing interests that are more compelling. A regulation may limit free speech if it is necessary to achieve a compelling government interest. This describes an analytical process known as “strict scrutiny.” Examples of compelling interests include national security and giving people fair trials. So, for example, the government may punish people who disclose secret military information in wartime. Judges may also issue “gag” orders, preventing attorneys and parties from discussing pending cases in public to avoid tainting the jury pool. Judges may also, and often do, admonish jurors to avoid discussing pending cases outside of their deliberations.
Despite these examples, “strict scrutiny” is a very high hurdle for regulations to clear. As such, government limitations on free speech not covered by one of these categories are unlikely to be upheld.
The First Amendment safeguards our ability to communicate ideas and express ourselves. Nevertheless, the limitations set forth in this presentation illustrate the balancing tests the courts must apply to ensure that our application of freedom of speech do not endanger our other societal interests.
 249 U.S. 47 (1919)
 395 U.S. 444 (1969)
 315 U.S. 568 (1942)
 See Gooding v. Wilson, 405 U.S. 518 (1971)
 Geoffrey R. Stone, Restrictions of Speech Because of Its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev. 81, (1978).
 413 U.S. 15, (1973).
 Frederick F. Schauer, The Law of Obscenity, (1976).
 475 U.S. 41, (1986).
 376 U.S. 254
 Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, (1980).
 517 U.S. 484