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United States free speech exceptions

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Exceptions to free speech in the United States are limitations on the First Amendment’s guarantee of free speech and expression as recognized by the United States Supreme Court. These exceptions have been created over time, based on certain types of speech and expression, and under different contexts. While freedom of speech in the United States is a constitutional right, these exceptions make that right a limited one.

Restrictions that are based on people’s reactions to words include both instances of a complete exception, and cases of diminished protection. Speech that involves incitement, false statements of fact, obscenity, child pornography, threats, and speech owned by others are all completely exempt from First Amendment protections. Commercial advertising receives diminished, but not eliminated, protection.

Along with communicative restrictions, less protection is afforded for uninhibited speech when the government acts as subsidizer or speaker, is an employer, controls education, or regulates the following: the mail, airwaves, legal bar, military, prisons, and immigration.

Communicative impact restrictions

Incitement

The Supreme Court has held that “advocacy of the use of force” is unprotected when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action”.[1][2] In Brandenburg v. Ohio (1969), the Court struck down a criminal conviction of a Ku Klux Klan group for “advocating … violence … as a means of accomplishing political reform” because their statements at a rally did not express an immediate, or imminent intent to do violence.[3] This rule amended a previous decision of the Court, in Schenck v. United States (1919), which simply decided that a “clear and present danger” could justify a congressional rule limiting speech. The primary distinction is that the latter test does not criminalize “mere advocacy”.[4]

False statements of fact

Main article: False statements of fact

In Gertz v. Robert Welch, Inc. (1974), the Supreme Court decided that there is “no constitutional value in false statements of fact”.[5] However, this is not a concrete rule as the Court has struggled with how much of the “speech that matters” can be put at risk in order to punish a falsehood.[6]

The Supreme Court has established a complex framework in determining which types of false statements are unprotected.[7] There are four such areas which the Court has been explicit about. First, false statements of fact that are said with a “sufficiently culpable mental state” can be subject to civil or criminal liability.[8] Secondly, knowingly making a false statement of fact can almost always be punished. For example, libel and slander law are permitted under this category. Third, negligently false statements of fact may lead to civil liability in some instances.[9] Additionally, some implicit statements of fact—those that may just have a “false factual connotation”—still could fall under this exception.[10][11]

There is also a fifth category of analysis. It is possible that some completely false statements could be entirely free from punishment. The Supreme Court held in the landmark caseNew York Times v. Sullivan (1964), that lies about the government may be protected completely.[12] However, this category is not entirely clear, as the question of whether false historical or medical claims are protected is still disputed.[13]

Obscenity

Main article: Miller v. California

Under the Miller test (which takes its name from Miller v. California [1973]), speech is unprotected if (1) “the average person, applying contemporary community standards, would find that the [subject or work in question], taken as a whole, appeals to the prurient interest” and (2) “depicts or describes, in a patently offensive way, contemporary community standards,[14] sexual conduct defined by the applicable state law” and (3) “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value”.[15] Some subsidiary components of this rule may permit private possession of obscene materials at one’s home.[16] Additionally, the phrase “appeals to the prurient interest” is limited to appeals to a “shameful or morbid interest in sex”.[17][18]

The Court has also held that a person may only be punished if he knows the actual “contents of the material”.[19] In Smith v. California (1959), the Supreme Court thus gave a defense of “reasonable ignorance” to an obscenity charge. The basis for this exception is that justices have believed that obscenity has a “tendency to exert a corrupting and debasing impact leading to antisocial behavior”.[20][21]

Child pornography

Main article: New York v. Ferber

The exception for child pornography is distinct from the obscenity exception in a few ways. Firstly, the rule is much more specific to what falls under the exception. Secondly, it is irrelevant whether any part of the speech meets the Miller test; if it is classified under the child pornography exception at all, it becomes unprotected.[22] The rule provides that speech is unprotected if it (1) “visually depicts” children below the age of majority (2) “performing sexual acts or lewdly exhibiting their genitals”.[23] Unlike the rules for simple obscenity, private possession of child pornography “may be outlawed”.[24]

While this exception is very concrete, it is also limited. It does not apply to pornography that people think is harmful when shown to children,[25] or pornography that urges viewers to harm children.[26]

Fighting words and offensive speech

Main article: Fighting words

A Westboro Baptist Church protest was the subject of an “offensive speech” Supreme Court case in Snyder v. Phelps(2010)

In Chaplinsky v. New Hampshire (1942), the Supreme Court held that speech is unprotected if it constitutes “fighting words”.[27] Fighting words, as defined by the Court, is speech that “tend[s] to incite an immediate breach of the peace” by provoking a fight, so long as it is a “personally abusive [word] which, when addressed to the ordinary citizen, is, as a matter of common knowledge, inherently likely to provoke a violent reaction”.[28]Additionally, such speech must be “directed to the person of the hearer” and is “thus likely to be seen as a ‘direct personal insult'”.[29][30]

Along with fighting words, speech might be unprotected if it either intentionally, knowingly, or recklessly inflicts severe emotional distress.[31] However, such a rule (which has never been explicitly decided) would be limited to private figures. The Court held in Hustler v. Falwell (1988) that satire which could be seen as offensive to a “public figure” is fully protected.[32] Such speech is rooted in a historical protection of political satire.[33] A notable example of a case involving offensive speech was the Court’s decision in Texas v. Johnson (1989), which struck down a law criminalizing flag burning in Texas.[34]

Threats

Threats of violence that are directed at a person or group of persons that has the intent of placing the target at risk of bodily harm or death are generally unprotected.[35] However, there are several exceptions. For example, the Supreme Court has held that “threats may not be punished if a reasonable person would understand them as obvious hyperbole”, he writes.[36][37] Additionally, threats of “social ostracism” and of “politically motivated boycotts” are constitutionally protected.[38] However, sometimes even political speech can be a threat, and thus becomes unprotected.[39]

Speech owned by others

Main article: Harper & Row v. Nation Enterprises

Another class of permissible restrictions on speech are based on intellectual property rights.[40] Things like copyrights or trademarks fall under this exception. The Supreme Court first held this in Harper & Row v. Nation Enterprises (1985), where copyright law was upheld against a First Amendment free speech challenge.[41] Also, broadcasting rights for shows are not an infringement of free speech rights.[42] The Court has upheld such restrictions as an incentive for artists in the ‘speech marketplace’.[43]

Commercial speech

Main article: Commercial speech

Commercial speech occupies a unique role as a free speech exception. While there is no complete exception, legal advocates recognize it as having “diminished protection”.[44]For example, false advertising can be punished and misleading advertising may be prohibited.[45] Commercial advertising may be restricted in ways that other speech can’t if asubstantial governmental interest is advanced, and that restriction supports that interest as well as not being overly broad.[46] This doctrine of limited protection for advertisements is due to a balancing inherent in the policy explanations for the rule, namely that other types of speech (for example, political) are much more important.[47]

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Notes

  1. Jump up^ Brandenburg v. Ohio, 395 U.S. 444 (1969).
  2. Jump up^ Volokh 2008, p. 3
  3. Jump up^ Volokh 2008, p. 5
  4. Jump up^ Volokh 2008, p. 7
  5. Jump up^ Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
  6. Jump up^ Volokh 2008, p. 55
  7. Jump up^ Volokh 2008, pp. 55–56
  8. Jump up^ Volokh 2008, p. 56
  9. Jump up^ Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985).
  10. Jump up^ Volokh 2008, p. 57
  11. Jump up^ Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
  12. Jump up^ Volokh 2008, p. 61
  13. Jump up^ Volokh 2008, p. 188
  14. Jump up^ Smith v. United States, 431 U.S. 291 (1977).
  15. Jump up^ Volokh 2008, p. 112
  16. Jump up^ Stanley v. Georgia, 394 U.S. 557 (1969).
  17. Jump up^ Volokh 2008, p. 113
  18. Jump up^ Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985).
  19. Jump up^ Smith v. California, 361 U.S. 147 (1959).
  20. Jump up^ Volokh 2008, p. 114
  21. Jump up^ Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
  22. Jump up^ Cohen 2009, p. 2
  23. Jump up^ New York v. Ferber, 458 U.S. 747 (1982).
  24. Jump up^ Osborne v. Ohio, 495 U.S. 103 (1990).
  25. Jump up^ Cohen 2009, p. 13
  26. Jump up^ Volokh 2008, pp. 128–129
  27. Jump up^ Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
  28. Jump up^ Cohen v. California, 403 U.S. 15 (1971).
  29. Jump up^ Volokh 2008, p. 143
  30. Jump up^ Camp 2005, p. 7
  31. Jump up^ Volokh 2008, p. 144
  32. Jump up^ Hustler v. Falwell, 485 U.S. 46 (1988).
  33. Jump up^ Cohen 2009, p. 12
  34. Jump up^ Texas v. Johnson, 491 U.S. 397 (1989).
  35. Jump up^ Virginia v. Black, 538 U.S. 343 (2003).
  36. Jump up^ Watts v. United States, 394 U.S. 705 (1969).
  37. Jump up^ Volokh 2008, p. 166
  38. Jump up^ NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
  39. Jump up^ Volokh 2008, p. 167
  40. Jump up^ Volokh 2008, p. 179
  41. Jump up^ Harper & Row v. Nation Enterprises, 471 U.S. 549 (1985).
  42. Jump up^ Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).
  43. Jump up^ Volokh 2008, p. 180
  44. Jump up^ Cohen 2009, p. 6
  45. Jump up^ Peel v. Attorney Reg. & Discip. Comm’n, 496 U.S. 91 (1990).
  46. Jump up^ Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
  47. Jump up^ Cohen 2009, p. 7
  48. Jump up^ Garcetti v. Ceballos, 547 U.S. 410 (2006)
  49. Jump up^ Connick v. Myers, 461 U.S. 138 (1983)
  50. Jump up^ Volokh 2008, p. 361
  51. Jump up^ Volokh 2008, pp. 361–362
  52. Jump up^ Pickering v. Board of Education, 391 U.S. 563 (1968).
  53. Jump up^ Volokh 2008, p. 460
  54. Jump up^ Reno v. ACLU, 521 U.S. 844 (1997).
  55. Jump up^ Tinker v. Des Moines School Dist., 393 U.S. 503 (1969).
  56. Jump up^ Morse v. Frederick, 127 S. Ct. 2618 (2007).
  57. Jump up^ Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1968).
  58. Jump up^ Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
  59. Jump up^ Camp 2005, p. 4
  60. Jump up^ Johnson 2001, p. 353
  61. Jump up^ Volokh 2008, p. 410
  62. Jump up^ Johnson 2001, p. 354
  63. Jump up^ Rust v. Sullivan, 500 U.S. 173 (1991).
  64. Jump up^ Volokh 2008, p. 412
  65. Jump up^ Volokh 2008, p. 476
  66. Jump up^ Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).
  67. Jump up^ United States District Court v. Sandlin 12 F.3d 861, 867 (9th Cir. 1993)
  68. Jump up^ Parker v. Levy, 417 U.S. 733 (1974).
  69. Jump up^ Thornburgh v. Abbott, 490 U.S. 401 (1989).
  70. Jump up^ Volokh 2008, p. 490
  71. Jump up^ Bridges v. Wixon, 326 U.S. 135, 148 (1945).
  72. Jump up^ Kleindienst v. Mandel, 408 U.S. 753 (1972).
  73. Jump up^ Volokh 2008, p. 498

References

External links

Categories: Americas, Free speach, Free Speech, Freedom

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