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Unprotected Speech, Module 3 of 5

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Module 3: Unprotected Speech

The First Amendment right to free speech is not absolute. As Supreme Court Justice Oliver Wendell Holmes, a strong advocate for free speech, famously wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”[1] Courts through the years have carved out  exceptions to the right to “say what you want, where you want, when you want,” and this module and the next one will explore some of the most important of those exceptions. With regards to each category, courts have had to decide how to balance the constitutional right of a party to free expression against the need of society to restrict such speech for various reasons.

Commercial Speech

“Commercial speech” means speech on behalf of a business with the intent to make a profit. It is different from political speech, and so can be restricted in ways that political speech cannot. It includes advertising and speech on television, radio, print, internet, public relations statements and other sales documents.  

Commercial speech can be regulated to a point. It’s protected by the First Amendment unless there is a convincing reason to restrict it, but regulations of commercial speech don’t get the same kind of “strict scrutiny” protection as does political speech. It gets diminished protection.[2]

The analysis of commercial speech is driven by consumer protection. The need of the public to be informed about products on the market is the strong government interest that justifies much restriction on commercial speech.

The courts did not recognize commercial speech as a category of free speech until 1942, when the Supreme Court held that commercial speech was not protected speech under the First Amendment, and that the government had a right to regulate any commercial speech.[3] In 1976,[4] however, the Supreme Court held that there are some circumstances in which the state could not regulate commercial speech. In that case, the Court struck down a state law prohibiting the publication of prescription drug prices. The Court said that states could not suppress truthful information about lawful business activity without justification.

Four years later, the Court decided another important case on this issue, Central Hudson Gas & Electric Corp. v. Public Service Commission.[5]

Central Hudson laid out a four-part test to determine when restrictions or regulations on commercial free speech violate the First Amendment:

  1. For speech to be protected, it must concern lawful activity and not be misleading. False advertising is unprotected (and is, in fact, the subject of civil and criminal prohibitions).
  2. The asserted governmental interest must be “substantial.”
  3. The regulation must directly advance the governmental interest.
  4. The regulation may only be as extensive as necessary to serve the interest.

Furthermore, there must be a "reasonable fit" between the government's ends and the means for achieving those ends.

 Over the years, various cases under the Central Hudson test have been decided over the issue of “substantial government interest.” For instance, the Court held that Puerto Rico had a substantial public interest in restricting the advertising of casinos to its population.[6]

Moreover, laws and regulations can mandate certain language in advertising.[7] Think about the disclaimers that accompany so many prescription drug ads and mandatory warnings that have been on cigarette packages for decades. The prohibition against government-mandated speech discussed in module 2 is not generally applicable to commercial speech.


“Incitement” is another example of unprotected speech. A similar rule, called the “fighting words” doctrine, also allows the government to outlaw speech likely to provoke a violent response.[8]

“Incitement” (often called “incitement to riot” in criminal statutes) means encouraging someone to break the law, particularly inciting a group of people to riot or otherwise engage in behavior that is violent or illegal (or both), like overturning cars or breaking store windows, burning crosses and attacking or intimidating people.

The balancing act here is for the courts to try to protect free speech while also trying to prevent riots and group attacks on people. Case law is replete with difficult decisions on how far speech can go before it is considered incitement and how far the government can go to restrict this kind of speech.

Until 1969, any speech that encouraged a group of people to engage in violence could be made illegal if there was a “clear and present danger” of violence. The clear and present danger test, which dated back to the famous 1919 Supreme Court opinion, penned by Justice Oliver Wendel Holmes in Schenck v. United States,[9] was difficult to apply, as clear and present danger is often in the eye of the beholder. That opinion, incidentally, also spawned the “fire in a crowded theater” metaphor.

The Supreme Court replaced the clear and present danger test in the 1969 case, Brandenburg v. Ohio.[10] The Brandenburg Court overturned a conviction against a Ku Klux Klan leader for inciting to riot when he told a rally, on an Ohio farm, to take “revengeance” against various groups of minorities and federal agencies.

The Court stated that to lose First Amendment protection as incitement, speech must be “directed to inciting imminent lawless action and likely to produce such action.” “Likelihood” and “imminence” are higher thresholds than just “clear and present danger.” It requires an immediate threat. Merely spewing hate is constitutionally protected.

The Court refined the test further in another KKK case in 2003,[11] where it defined “true threats” as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” The Court noted that the speaker “need not actually intend to carry out the threat.” This case concerned cross burning as a specific threat. The Court overturned Virginia’s law against cross-burning, holding that the law needed to include a provision to require that the crosses were specifically burned to intimidate for the law to pass constitutional muster.

Crimes Involving Talking and Agreeing

Just talking is not a crime. Talking about crime is not a crime. But planning a crime might leave the realm of free speech and become a criminal act. At that point, talking about committing a crime becomes a crime called conspiracy. Conspiracy may be charged separately from the underlying criminal act and does not require the underlying criminal act to take place.

The elements of the crime of conspiracy are an agreement to carry out a crime, combined with the specific intent to further the criminal objective. To ensure that the talk is serious before finding criminal liability, most jurisdictions require at least one conspirator to have taken a physical act towards committing the crime, known as the “overt act” requirement.[12] This could include “casing the joint” or purchasing guns or other criminal tools.[13]

The crime of conspiracy can clash with freedom of speech rights, however, when it is used to arrest people for political speech, as happened to several members of the American Communist Party in 1948.[14] In that case, the Supreme Court upheld the arrest of eleven people attempting to create that party based on the “clear and present danger” test. In retrospect, it may seem unlikely that a few guys sitting around discussing politics was a danger to the country, but that’s what the “red scare” was all about. Conspiracy laws are still used today to try to stop potential terrorist attacks by parties as diverse as ISIS and the KKK[15] and to attack organized crime.

Blackmail and Extortion

Extortion and blackmail are crimes that typically are accomplished by the spoken (or written) word. Blackmail is the threat to bring a criminal case in order to settle a private, civil matter.[16] It is a form of theft. An example would be a person threatening to go to the police about a crime unless the person who committed the crime gives the blackmailer money. The truth of the accusation is not relevant to this crime.

Extortion is the threat to release private information to the public or threats to a person’s well-being unless the extorter is given some consideration, like money or sexual favors.[17] Federal extortion statutes also criminalize threats against the President or a governmental authority, some threats by government employees (such as a police officer threatening arrest for no reason), mailing or electronically transmitting threats and several more categories. They are all felonies.

State laws vary widely in their applications of these concepts[18]. For instance, some states only charge public authorities with extortion while charging private citizens with blackmail. Some states call both crimes “extortion.”[19]


Obscenity is a category of speech inherently unprotected by the First Amendment. It can be defined as “an act, utterance, or item tending to corrupt the public morals by its indecency or lewdness.”[20] Still, not every communication that’s lewd, indecent or even pornographic qualifies as obscene. To be considered obscene and thus unworthy of protection, communication must meet certain specific legal criteria. Obscenity can be divided into three types: obscene speech, pornography and child pornography.

Obscene Speech

Ever since Clark Gable turned to Vivien Leigh in Gone with the Wind and said, “Frankly, my dear, I don’t give a damn” in 1939, American society in general and courts in particular have been vexed by the issue of what is allowable in print, music or film that people may find offensive. 

In these days of “anything goes” on cable TV and satellite radio, it is easy to forget that there was a time in the not-so-distant past when broadcast language was strictly controlled by various government censorship laws. While commercial broadcast television is still somewhat restricted in what can be said and shown,[21] court decisions and popular culture have steadily diminished these limits.[22]

Courts struggled in the 1960s and 1970s to define “obscenity” in any meaningful way so as to determine whether an obscenity law was being broken. Lenny Bruce went to jail in 1964 for profanity, which was considered verbal obscenity.[23] Though hard to imagine today, Lenny Bruce actually went to jail for swearing.

Then George Carlin went to court in the mid-1970’s over his “Seven words that you can’t say on television” routine (which was inspired by Bruce), as did a radio station that aired the routine.[24] Carlin won his case as the Supreme Court ruled that curse words may be “indecent but not obscene.” These days, prosecution for swearing in public is rare, if not extinct. Obscene words are rarely, if ever, prosecuted anymore. Modern obscenity prosecutions now concentrate on visual pornography and, in particular, on child pornography.

Adult Pornography

Pornography is communication or imagery that is intended to sexually arouse a person who hears, reads or views the material. Pornography cases are analyzed under the 1973 case, Miller v. California,[25] the case most famous for Justice Potter Stewart’s writing that he could not define pornography, but that “I know it when I see it.”

Miller set forth a three-part test for determining what constitutes pornography that is unprotected by the First Amendment and thus may be barred by law:

1.    The materials must “appeal to the prurient interest,”

2.    The material must depict sexual acts or behavior in a way that is patently “offensive” in the community (here, location matters; what is offensive in Provo, Utah, may not be offensive in Las Vegas, Nevada); and

3.    The material is not considered obscene if, taken as a whole, is has any serious “literary, artistic, political or scientific value.”

The three-pronged Miller test has been interpreted by many courts over many years and is still the standard used by every court in attempting to judge what is pornography. Two Supreme Court cases have further refined this test.

In Smith v. United States[26] the Court held that a legislature’s interpretation of how to define “community standards” does not supersede an individual juror’s interpretation of what a community standard is. Then in Pope v. Illinois,[27] the Supreme Court ruled that in applying the third prong of Miller test to a prosecution for the sale of allegedly obscene materials, the proper standard of review is whether a reasonable person would consider that the work “taken as a whole, lacks serious literary, artistic, political, or scientific value.”

With the modern proliferation of pornography on the internet, application of the “community standards” rule has become more and more difficult.

Child Pornography

Child pornography, on the other hand, is always considered obscene and unprotected by the First Amendment.[28] Sexual images of children under the age of 18 are considered to be contraband under federal and state law and are “not protected under First Amendment rights.”[29]

Federal law makes it unlawful to produce, view, or transport these images in interstate or foreign commerce. It is also unlawful to distribute these images to children on the internet.[30] The penalties for violating those statutes are severe, including lengthy prison sentences and registration as a sex offender. In addition, all states have child pornography laws on the books,[31] which vary extensively.

Other Categories of Unprotected Speech

Perjury and False Statements

While it is not illegal to lie, there are specific lies that are punishable under the law. One punishable lie in particular is dedicated to preserving the sanctity of the legal process: lying under oath to a court or a governmental entity like Congress or the FBI. Lying under oath in a court proceeding such as a trial, deposition or affidavit, is the crime of perjury under federal[32] and state[33] laws. States have various punishments for perjury. Lying under oath in federal court is punishable by up to five years in prison. Lying to the FBI or other federal entities is called “making false statements” under federal law,[34] and violations are also punishable by up to five years in prison.

Copyright Laws

People who write their words own them and can publish them. Copyright law also protects creators by allowing them to stop others from publishing their works. This is so fundamental to US law that it is in the Constitution.[35] There are federal and state copyright laws. The first federal copyright law was passed in 1976.[36] Until that time, content generators were protected only by common law and state copyright laws. Copyright law protects books, digital property, art, music and other original works from unauthorized use.

Publishing or otherwise using someone else’s content without permission is copyright infringement, subject to some exceptions detailed in federal copyright laws. The Constitution’s copyright clause was written around the same time as the First Amendment, and courts have generally pointed to that fact in saying that the two clauses should be read together, with copyright law written specifically as a restriction on free speech.

Note that only materials put into a tangible medium are protected by copyright law. Ideas cannot be copyrighted. That makes these written or recorded materials more like property than are ideas, which are more analogous to speech. This analysis makes copyright restrictions seem less of an infringement on freedom of speech. Moreover, the “fair use” doctrine provides the most important exception to copyright law. It allows use of copyrighted work for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.”[37] That allows, for instance, use of these materials for parodies, satires and news reports,[38] thus allowing most expression normally considered most important under the First Amendment.

Copyrighted works can be registered with the US Copyright Office and can display a © mark. It is not necessary to register a work in order to be protected under copyright laws, but registration gives the content owner evidence of having first created the work.

Speech at Work

The First Amendment protects against speech restrictions by governmental bodies. It does not apply within the confines of private employment. You do not have the right to say whatever you want to at work. Employers can restrict speech at work for almost any reason, such as atmosphere at work, productivity of employees and the image of the employer. However, those restrictions cannot violate other federal or state laws. For example, speech cannot be restricted if it interferes with the practice of a religion and may be restricted by civil rights statutes, whistleblower protection statutes, anti-harassment laws or hostile workplace environment rules.

In our next module, we’ll look at First Amendment freedoms relating to political speech and protest, include freedom to assemble, protest and associate. We will also look at allowable restrictions on those freedoms.






[1] Schenck v. United States, 2498 U.S. 47 (1919).

[2] Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002).

[3] Valentine v. Chrestensen, 316 U.S. 52 (1942).

[4] Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).

[5] Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).

[6] Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986).

[7] In re R.M.J., 455 US 191 (1982): “[W]arning[s] or disclaimer[s] might be appropriately required . . . in order to dissipate the possibility of consumer confusion or deception.”

[8] Chaplinsky v. New Hampshire, 62 S. Ct. 766 (1942).

[9] Schenck v. United States, 249 U.S. 47 (1919).

[10] Brandenburg v. Ohio, 394 U.S. 444 (1969).

[11] Virginia v. Black, 538 U.S. 343 (2003).

[12] California Penal Code § 182 (a).

[13] State v. Williams, 128 P.3d 98 (Wash. Ct. App. 2006).

[14] Dennis v. United States, 341 U.S. 494 (1951).

[16] 18 U.S.C. § 873.

[17] 18 U.S.C. § 871.

[19] 18 Pa. Cons. Stat. Ann. § 3923.

[21] 18 U.S.C. § 1464.

[22] Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), Shea ex rel. Am. Reporter v. Reno, 930 F. Supp. 916 (S.D.N.Y. 1996).

[23] Bruce was pardoned posthumously in 2003.

[24] Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978).

[25] Miller v. California, 93 S. Ct. 2607 (1973).

[26] Smith v. United States, 97 S. Ct. 1756 (1977).

[27] Pope v. Illinois, 107 S. Ct. 1918 (1987).

[28] 18 U.S.C. § 2252, 1466.

[30] 18 U.S.C. § 2252.

[32] 18 U.S.C. § 1621.

[34] 18 U.S.C. § 1001.

[35] U.S.C.S. Const. Art. I, § 8, Cl 8.

[36] 17 U.S.C.S. § 101.

[37] 17 U.S.C. § 107.