What Speech is Unprotected?

When we talked with Suzanne Nossel, the CEO of the PEN America Foundation, we focused on free speech in America, and how it’s under attack in various ways. One interesting thing she said was that there is no actual definition of “hate speech” and that “hateful speech” is a better representation of the kinds of speech we’re seeing more and more of today.

Listen to ourinterview with Suzanne here!

Because the First Amendment is so strong in the US and has been widened by the courts over the years, America protects more speech than any other nation on Earth. As we’ve seen in recent years, this is both a blessing and a curse. We thought it would be interesting to take a look at the kinds of speech that aren’t protected by the First Amendment, and why they aren’t.

1. Incitement: The first kind of speech that isn’t protected is incitement. Simply put, incitement is speech that causes others to directly commit criminal acts, usually violence. Even if you didn’t actually commit the crime, you’re still in trouble because you directly told them to do something criminal or violent, and they did. You can use the Brandenburg Test to tell whether or not something qualifies as incitement. The test has two parts: firstly, the speech must be “directed to inciting or producing imminent lawless action”; and secondly, “likely to incite or produce such action.” If it passes both of those prerequisites, it’s illegal. We get that test from the 1934 Supreme Court decision Brandenburg V. Ohio, which found that speech that promotes violence is legal unless it passes the two-part test.

2. Fighting Words: This one is similar to incitement, but the inverse. Fighting words are statements designed to provoke violence or unruly response in the person they are addressed at. Fighting words were first held to be unprotected in 1942 during the Supreme Court case Chaplinsky V. New Hampshire. In it, Walter Chaplinsky publicly called a police officer a “damned racketeer” and a “damned Fascist” (both pretty good insults) in the town of Rochester, NH, and was eventually fined. He appealed his way to the Supreme Court, who found that his speech was not protected. It also found that speech in a public place that intends directly to cause a breach of peace through provocation is not protected. The Court later included inciting a riot as fighting words, but actions like burning the flag were protected.

3. Defamation and Libel: Defamation and libel lawsuits against the press happen with frequency, but very few are successful because the Supreme Court has created a very narrow view of them. Defamation is a false statement about someone presented as a fact that negatively impacts that person. Libel is written defamation. In order to protect the free press, the Supreme Court has made libel extremely specific and hard to prove, so that news outlets don’t “self-censor.” In order to prove libel as a public personage, “malice of intent” must be proven. Essentially, proof that shows the outlet knew it was false, didn’t research it, and published it as fact. Proving that the authors or publishers intended to commit libel is extremely difficult, and hard to overcome in court.

4. Obscenity: Obscenity is one of the most difficult instances of unprotected speech the courts have to deal with. Broadly, it covers content and speech that is considered “lewd, filthy, or disgusting.” This, as you might imagine, is pretty subjective, and Justices have struggled for decades to come up with a reasonable framework to place on obscene content. It’s so hard to nail down that in 1964 Justice Potter Stewart (who was ultimately replaced by the first woman to ever serve on the Supreme Court, Sandra Day O’Connor) famously couldn’t provide a definition of obscenity but said: “I know it when I see it.” Thanks to the 1973 case Miller V. California, we have a handy test (similar to the Brandenburg Test) called—wait for it—the Miller Test. The Miller Test 1) requires the “average person” to find the content as a whole appealing to “prurient interest,” 2) whether it depicts or describes sexual conduct in a “patently offensive” way,” and 3) whether it lacks “serious literary, artistic, political, or scientific value.” If it passes this test, it’s obscene and you’re in trouble. The third part, however, makes a whole lot of stuff you’d probably think of as obscene (like most hardcore pornography) protected. Interestingly, according to the courts, violence cannot be obscene, and is protected.

5. Commercial Speech: This one may seem odd, but it’s actually pretty straightforward. Commercial speech is that which is used in commerce. Ads are the most common form of commercial speech. It isn’t that commercial speech is unprotected, it’s just that it’s more susceptible to government regulation than regular old speech is. For instance, you can lie as a public citizen and it’s protected (mostly, as long as it isn’t defamation), but you can’t lie as a company and argue it’s protected. This is a way for governments of various levels to make sure commercial interests are playing fair and allows them to regulate what companies say in a way they can’t with regular citizens.

These are the major kinds of speech that are not protected under the First Amendment, and you may notice it’s a pretty short list. That’s on purpose, and for the sake of the country, we hope it stays that way.

WORKS CITED

• “Brandenburg Test.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/wex/brandenburg_test.

• “Brandenburg v. Ohio, 395 U.S. 444 (1969).” Justia Law, supreme.justia.com/cases/federal/us/395/444/.

• “Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).” Justia Law, supreme.justia.com/cases/federal/us/315/568/.

• “Citizen's Guide To U.S. Federal Law On Obscenity.” The United States Department of Justice, 19 Dec. 2018, www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-obscenity.

• “Commercial Speech.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/wex/commercial_speech.

• “Differences Between Defamation, Slander, and Libel.” Legalzoom.com, 13 Nov. 2019, www.legalzoom.com/articles/differences-between-defamation-slander-and-libel.

• “Fighting Words.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/wex/fighting_words.

• Hudson, David L. “Obscenity and Pornography.” Obscenity and Pornography, mtsu.edu/first-amendment/article/1004/obscenity-and-pornography.

• “Incitement.” The Free Dictionary, Farlex, legal-dictionary.thefreedictionary.com/incitement.

• “Jacobellis v. Ohio.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/supremecourt/text/378/184.

• Jr., David L. Hudson. “Brown v. Entertainment Merchants Association.” Brown v. Entertainment Merchants Association, mtsu.edu/first-amendment/article/1382/brown-v-entertainment-merchants-association.

• Leingang, Rachel. “Who Did Sandra Day O'Connor Replace on the U.S. Supreme Court?” Azcentral, Arizona Republic, 23 Oct. 2018, www.azcentral.com/story/news/local/phoenix/2018/10/23/sandra-day-oconnor-replaced-potter-stewart-supreme-court-ronald-reagan-dwight-d-eisenhower/1739559002/.

• “Miller v. California.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/supremecourt/text/413/15.

• “Obscenity.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/wex/obscenity.

• “Texas v. Johnson.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/supremecourt/text/491/397.

• “United States Constitution.” Constitutional Law Reporter, constitutionallawreporter.com/amendment-01/freedom-speech/defamation/.