Before I go to explain that what types of speech are not protected by the first amendment, it is necessary to understand first that actually the unprotected speech is.
What is unprotected Speech?
I would like to open this article by explaining the difference between civil rights and civil liberties.
As ideas civil liberties is about negative liberties, it’s about all those things that the government may not do.
For example freedom of speech means the government cannot limit your speech.
For example we talk about rights that are positive of liberties that is to say the government has to take proactive steps to do something to guarantee that you have those rights.
For example the right to vote.
Unlike with freedoms it’s not enough for the government to get out of the way and not physically restrain you from voting.
The government has to be able to guarantee that there are voting places that there is safe and secure access to them etc.
So if civil liberties are about the things that the government may not do, then civil rights are about things that the government must do, must guarantee for practical purposes.
The distinction between the two can be blurred and things get a little bit more messy.
When we think about civil liberties that are in common parlance called rights.
For example we always say property rights, we do not say property liberties even though in the technical sense the rights that are the property rights that are guaranteed in the Constitution.
Our property liberties for example our Amendment, the government cannot cannot take your property without just compensation.
That’s a Liberty, that’s something a negative government may not take your property without just compensation.
So this difference between rights and liberties for practical purposes turns out to be more semantics than real but let’s begin this topic of civil liberties was the First Amendment and specifically with freedom of speech.
So the government can breach abridge freedom of speech.
The next thing that I would like to point out is even though the liberties are and rights are very real.
Government can impose some limitations on them.
The question is how many limitations that’s always been the question.
How many limitations government impose on civil rights and civil liberties when it comes to freedom of speech in particular.
What is not protected by the first amendment?
First Amendment to the U.S. Constitution:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
There are some exception fall within the ambit of the Amendment clause which are as follows:
- Hate Speech
- Obscenity
- Inciting Violence
- Supporting Terrorism
- Public Employee Speech
- Defamation – Hurting another Person’s Reputation
- Free Access to Confidential Sources
- True Threats
Additional restrictions:
- The Right to Publish Anything
- The Right to Ban Books at School
- The Right to Unrestricted Free Speech at Work
- The Right for Teachers to Pray With Students
- The Right to Protest Wherever, Whenever
- The Right to an Answer From the Government
What types of speech are not protected by the first amendment?
There are some types of speech that are not protected by the first amendment ever.
In other words they have never enjoyed even a small degree of protection.
Obscenities:
One for many decades the court has struggled to define obscenity but in 1973 in the case of Miller versus California it came up with a three-part test and a particular work in question has to meet all three parts in order to be qualified as obscene and even though the court came up was this relatively clear definition of obscenity.
Its clarity is more on paper than in reality and the reason why is because in reality. It’s very difficult to meet the last part of the obscenity test and the last part says whether the work taken as a whole lacks serious literary artistic political or scientific value if a state obscenity law is thus limited.
First Amendment values were adequately protected by ultimate independent appellate review of constitutional claims when necessary.
So if the work has no literary artistic, political or scientific value then it will not be protected if it also meets the other two definitions of obscenity but if it has some literary artistic, political or scientific value it will be protected by the First Amendment even if it does meet the first two definitions of obscenity.
So you can always argue that any work has at least some artistic or literary or political or scientific value for this reason almost nothing is obscene. So for practical purposes the definition of obscenity does not work if you talk about limiting works based on obscenity or almost nothing as obscene.
Fighting words:
Another example that is not protected under the First Amendment would be fighting words. Fighting words are commonly understood to be any form of expression that is likely to immediately incite violence at the given point in time or location.
This would generally apply broadly to some form of public representation or expression that would likely cause her incite immediate violence at that location in that point if you disconnect any of those you say that the expression is broadcast or somehow recorded and then replayed at a different time.
Well the actual expression when it happened in that case is protected because the likelihood or ability for that expression to immediately incite violence is limited.
Fighting words that will induce a reasonable person in whose presence they’re added to a physical confrontation.
There is not a definitive list of what is or is not a fighting word. In different eras different words were considered fighting words.
For example, in the 1940s some people were arrested for calling police officers fascist because the United States was at war with fascist countries of Germany and Italy and the word fascist had a different connotation than it does.
Today racial slurs generally are considered fighting words but once again remember in order for this type of speech not to have protection to be considered fighting words most likely to result in the physical confrontation.
So if these words are posted on the Internet, they’re not fighting words because they’re not likely to result in a fight because no one has yet figured out how to punch or kick someone’s through the computer screen but if they’re ordered in in the presence in the physical presence of a particular person who can be incited to physical confrontation as a result then they are fighting words.
Many of you may remember a defamatory video that spoke against the the Islamic faith or the Prophet Muhammad and it depicted Muhammad in a negative light and there was a very negative and violent reaction in locations throughout the world and in response to the question.
Defamation:
Defamation is the next category of unprotected speech and it comes in two varieties
- Slander which is verbal defamation and
- Libel which is written defamation.
Slander is only verbal in the United States for defamation is not easy to meet.
First of all a statement uttered must be a statement that is about facts and is false. So if a statement is a clearly a statement of opinion that’s not about facts and you can have any opinion that you want.
For example if you think the particular car that you bought is a really bad car.
You can say it’s an ugly car, it’s a bad car, it’s a matter of opinion but if you say that the salesmen specifically took out the backseat from the car and put an explosive device under the front passenger seat and sprayed the glove compartment with poison.
Those are not opinions though those would be statements about facts. Now they could be true or false and if they are false then you’re potentially opening yourself up to a defamation lawsuit.
So when you talk about statements that can be checked these are the factual information that enters the domain potentially of defamation.
If the statements are false for politicians, celebrities and public figures of all sorts, it’s not enough even to have statements of facts that are false.
They would also have to prove that people who made those statements or statements made them with actual malice.
Actual malice means that they knowingly made false statements or they made them without reckless disregard for truth, that is to say even if they didn’t know the real truth.
They could have easily checked at it. So they have made clearly false statements with either knowingly always reckless disregard for truth and they can be sued for defamation.
Also I should know that satire is automatically out of defamation because it’s not meant to be taken literally.
So it’s not a statement of fact which is why comedy shows can get away with saying all kinds of stuff making all kinds of fun of politicians because they’re not making literal statements about facts.
Child pornography:
Child pornography has never been protected speech. Jared Fogle went to prison as you know the former subway spokesman who lost a lot of weight eating low-calorie subway sandwiches. No, child porn is not protected.
Perjury:
Perjury is not protected. Perjury is lying in court. You cannot go to court and then under oath say, “Well, no I didn’t really witness this event” and then it turns out that you’re in videotape witnessing that event. You cannot tell the judge as an excuse, “Hey, that’s my freedom of speech, I can say what I want”.
No you cannot perjure yourself. You cannot lie under oath.
Blackmail:
Blackmail is when you try to obtain something money or favors. Usually money as a result of an implied threat or explicit threat to reveal compromising information.
So blackmail is also not protected by the First Amendment.
Threats:
True threats are when you try to threaten someone’s life or health as opposed to wishes.
For example, if you wish someone ill. If you wish that someone dies or someone comes to harm.
That’s actually protected by the First Amendment but if you really threaten them then it’s not protected by the First Amendment.
Well, what’s the difference really?
It’s the context that decides which statements are statements of wishful and which statements are just literally is statements of threats.
Solicitation to commit crimes:
Solicitation to commit crimes you cannot ask someone to commit any legal act for you and then use freedom of speech as a defense.
So if you ask someone to commit a crime then that act of asking is also a crime.
Heckler’s veto:
Heckler’s Veto is interesting because not many people understand it especially when they hear it for the first time.
Heckler’s veto is when police can stop you from speaking even though the content of your speech is perfectly protected by the First Amendment but they do so because the audience begins to heckle or otherwise show significant displeasure in the situation.
So if a situation could escalate into violence clearly protection of life and health of the people takes precedence over this speech.
So if there’s a threat of escalation, they can assure you police can offer you off stage and say okay you’re done talking and that you cannot sue them for infringing your First Amendment rights if the situation warrants the protection of life or lives due to hecklers, due to the angry audience.
Incitement:
Incitement to imminent lawless action is very important because this is the current generic standard of speech that we have incitement to imminent lawless action as a standard that the court posited only in the 1960s as these standards for differentiating all kinds of speech in terms of protection and lack of protection under the First Amendment.
So the speech in order not to have First Amendment protection must first core call for an illegal action and the action must be imminent in its nature. That’s the first and the second an unlawful action called for by the speech must be about to happen, must be imminent.
If someone were to say you know I’m the leader of the biker and I see other bikers of a rival gang over there let’s get our change in our knives and let’s go and beat them up and cut them up.
That would be based on the content probably inside into imminent lawless action, if on the other hand someone were to say well you know what it would be good to overthrow the government some time maybe who knows when maybe next century, maybe a century after that but the government is kind of not good and deserves of being overthrown.
This sort of speech most likely would be protected under this current standard because while it calls for an action that is illegal.
It is not imminent and also it is not likely to happen just because someone says something in this case that calls for an overthrow of government at some unspecified time.
This would probably be protected but again ever since depends on the context.
Commercial Speech:
Finally, commercial speech has limited protection since the twentieth century prior to that commercial speech really didn’t have the First Amendment protection but currently it does have some limited protection.
