United States free speech exceptions

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".[2][3]

In the early 20th century, incitement was determined by the "clear and present danger" standard established in Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. observed: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”[4] In Brandenburg v. Ohio (1969), this was narrowed to an "imminent lawless action" standard, with the Supreme Court unanimously reversing the 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.[5] This decision overruled Schenck v. United States (1919), which held that a "clear and present danger" could justify a law limiting speech. The primary distinction is that the latter test does not criminalize "mere advocacy".[6]

In Gertz v. Robert Welch, Inc. (1974), the Supreme Court decided that there is "no constitutional value in false statements of fact".[12] 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.[13]

The Supreme Court has established a complex framework for determining which types of false statements are unprotected.[14] 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.[15] Second, knowingly making a false statement of fact can sometimes be punished. Libel and slander laws fall under this category. Third, negligently false statements of fact may lead to civil liability in some instances.[16] Lastly, some implicit statements of fact—those that have a "false factual connotation"—can also fall under this exception.[17][18]

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 case New York Times v. Sullivan (1964) that lies about the government may be protected completely.[19] However, this category is not entirely clear, as the question of whether false historical or medical claims are protected is still disputed.[20]

In addition, false statements made under penalty of perjury are subject to legal sanctions if they are judged to be material.[21]

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,[22] would find that the [subject or work in question], taken as a whole, appeals to the prurient interest" and (2) "the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law" and (3) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value".[23] Some subsidiary components of this rule may permit private possession of obscene materials at one's home.[24] Additionally, the phrase "appeals to the prurient interest" is limited to appeals to a "shameful or morbid interest in sex".[25][26]

The Court has also held that a person may only be punished if he knows the actual "contents of the material".[27] 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".[28][29]

The exception for child pornography is distinct from the obscenity exception in a few ways. First, the rule is much more specific to what falls under the exception. Second, 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.[30] The rule provides that speech is unprotected if it (1) "visually depicts" children below the age of majority and (2) "performing sexual acts or lewdly exhibiting their genitals".[31] Unlike the rules for simple obscenity, private possession of child pornography "may be outlawed".[32]

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,[33] or pornography that urges viewers to harm children.[34]

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".[35] 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".[36] Additionally, such speech must be "directed to the person of the hearer" and is "thus likely to be seen as a 'direct personal insult'".[37][38]

“True threats of violence” that are directed at a person or group of persons that have the intent of placing the target at risk of bodily harm or death are generally unprotected.[39] 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.[40][41] Additionally, threats of "social ostracism" and of "politically motivated boycotts" are constitutionally protected.[42]

Under Title 18 Section 871 of the United States Code it is illegal to knowingly and willfully make "any threat to take the life of, to kidnap, or to inflict bodily harm upon the president of the United States." This also applies to any "President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect."[43] This law is distinct from other forms of true threats because the threatener does not need to have the actual capability to carry out the threat, meaning prisoners can also be charged.[44]

Another class of permissible restrictions on speech is based on intellectual property rights.[45] 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.[46] Also, broadcasting rights for shows are not an infringement of free speech rights.[47] The Court has upheld such restrictions as an incentive for artists in the 'speech marketplace'.[48]

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".[49] For example, false advertising can be punished and misleading advertising may be prohibited.[50] Commercial advertising may be restricted in ways that other speech can't if a substantial governmental interest is advanced, and that restriction supports that interest as well as not being overly broad.[51] 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.[52]

• Freedom of the press in the United States § Historical constraints on press freedom
• Gag orders in the United States
• Prior restraint
• Virginia v. Black
• List of landmark Free Speech cases

• List of notable Free Speech cases before United States Supreme Court
• Annotated First Amendment from FindLaw