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U, Unprotected Speech.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Unprotected Speech.

The Supreme Court has fashioned *First Amendment doctrine around a “free-speech principle.” This principle has two fundamental tenets: first, that free speech serves special and significant constitutional purposes and, second, that the First Amendment should not protect all speech but only speech of a certain quality. The free-speech principle reflects a tension between two cardinal values in our constitutional system: liberalism and democracy. Liberal values stress individual liberty and antipaternalism, and beckon the Court to protect expression that does not constitute substantial direct harm to society, while democratic norms endorse the right of the majority to enact value judgments that limit liberty. The free-speech principle applies liberal standards to “protected” expression but is more tolerant of democratic controls in the regulation of “unprotected” expression.

Defenders argue that free speech furthers the search for objective truth, buttresses an open “marketplace of ideas” that assists temporary majorities in defining truth for themselves, promotes individual self-realization, contributes to the practice of self-government, and helps check government abuse.

Though each of these theories has influenced the Supreme Court, it has relied mainly on the rationale developed in *Chaplinsky v. New Hampshire (1942). Chaplinsky involved the constitutionality of punishing fighting words, performative epithets designed to harm emotionally or to trigger a hostile reaction. In upholding Chaplinsky’s conviction for swearing at a police officer, Justice Frank *Murphy wrote that lewdness, *obscenity, *libel, profanity, and fighting words are unprotected expression because “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” (p. 572).

On the one hand, speech that falls within Chaplinsky’s category of protected expression is protected by the liberal content-neutrality rule, which stipulates that “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” (Police Department of Chicago v. Mosley, 1972, pp 95–96). Nor may government restrict speech because of a paternalistic fear that the speech might have undesirable long-range consequences. Abridgment is permissible only if it satisfies the test of *strict scrutiny: that is, it must be necessary to achieve a “compelling” state interest. On the other hand, government may prohibit unprotected expression simply by showing that the restriction is reasonably related to a legitimate government objective.

The most important illustration of the liberal standards governing protected expression is the (p. 1040) Supreme Court’s treatment of political speech that advocates lawless action. The 1969 case of *Brandenburg v. Ohio held that such advocacy is punishable only if it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (p. 447). This direct incitement test is clearer and more objective than the clear and present danger test that preceded it in determining the boundaries of advocacy speech (*Schenck v. United States, 1919).

Brandenburg’s liberal standard does not apply to unprotected speech such as libel, obscenity, and fighting words. The Court’s treatment of these exceptions, however, has grown more liberal in recent decades. Chaplinsky’s two-level speech theory favored rational, civil discourse over indecent or highly provocative expression. It assumed that sufficient social consensus existed concerning the nature of the moral order. These tenets and assumptions were challenged when the Court got down to the business of applying the two-level test in an environment of rapid political and cultural transformation in the 1960s and 1970s.

Fighting Words

The fare of the fighting-words exception signifies the modern liberalization of free-speech doctrine. In the 1960s, the Court ruled that the threats of hostile audiences (“hecklers’ vetoes”) could not justify the suppression of speech unless police have no other way to maintain order (*Edwards v. South Carolina, 1963). The heckler’s veto doctrine weakened the rationale for fighting words, which had made intentionally provocative speech subject to punishment. The Court took a further step in this direction in *Cohen v. California (1971), reversing the conviction of a young man for violating California’s disturbance of the peace statute. Cohen had walked through a Los Angeles courthouse wearing a jacket with the words “Fuck the Draft” emblazoned on its back. The case limited the fighting words doctrine to situations in which a violent reaction is likely to be incited by the speech. More broadly, Cohen also lowered the threshold of protected expression in general by acknowledging that the “emotive function” of speech is important, not just speech’s “cognitive content” (pp. 25–26).

In 1992, the Court created an important new rationale limiting the manner in which governments may restrict fighting words or any other expression within an “unprotected” category. R.A.V. (the initials of a juvenile) had been convicted of violating St. Paul’s new *hate speech ordinance by burning a cross in front of the home of an African-American family. The ordinance prohibited only a limited class of fighting words, those that arouse “anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” R.A.V.’s speech act could have been properly punished under a general fighting words or threat law. But singling out only these particular forms of fighting words or threats for prohibition meant that St. Paul had treated certain subjects differently from others in terms of proscription. According to a majority of the Court, such favoritism amounted to viewpoint discrimination (*R.A.V. v. St. Paul). The state may single out a limited subclass of unprotected speech for proscription only if the rationale for the so-called underinclusion is based on the very same reason that the entire class of speech is proscribable in the first place. Applying this logic in 2003, the Court upheld a Virginia statute that prohibited the burning of a cross with the intent of intimidating a person or group. Threats are unprotected speech because they constitute intimidation, so singling out one of the most intimidating forms of threats for proscription does not constitute viewpoint discrimination.


The first explicit constitutional test for obscenity arose in Roth v. United States (1957). The Court ruled that the First Amendment does not protect material that is predominantly “prurient” (lascivious or impure) according to community standards because such material harms moral values concerning sexuality and is not conducive to the rational exposition of ideas (p. 484). But the Court developed a considerably more liberal test in the context of changes in sexual mores in the 1960s. Materials some considered obscene merited constitutional protection if they possessed any plausible redeeming social value (A Book Named John Cleland’s “Memoirs of a Woman of Pleasure” v. Massachusetts, 1966) or were not “patently offensive” to community standards. *Obscenity remained unprotected speech under the First Amendment, but little was held to be obscene.

As the market in sexually explicit materials exploded after Memoirs, a divided Burger Court attempted to provide more leeway for obscenity prosecutions in *Miller v. California (1973). Under Miller, prurient and “patently offensive” sexual material is obscene unless it possesses “serious literary, artistic political, or scientific value” (p. 24). The “utterly without redeeming social importance” test was discarded. But Miller was no major counterrevolution. Its obscenity test boiled down to “hard core” pornography, and its standards have proved to be as unenforceable as those of Memoirs.


Although it distorts the “exposition of ideas,” libel may also be the unintended by-product of an honest inquiry. Consequently, in *New York Times Co. v. Sullivan (1964), a case involving a suit brought by the Montgomery, Alabama, police commissioner against the Times for publishing a libelous advertisement by civil rights groups, the Supreme Court (p. 1041) extended unprecedented constitutional protection to libelous speech. Alabama law embodied the traditional approach to libel: if the material was defamatory, strict liability prevailed, truth being the only defense. But the Court unanimously ruled that the First Amendment shields the press from liability for defaming a “public official” unless the victim can show by “convincing clarity” that the libel was made with actual malice, that is, with “knowledge” of falsehood or “reckless disregard of whether it was false or not” (p. 280). Few plaintiffs can meet this standard. Sullivan thus safeguarded the “breathing space” that facilitates honest but erroneous criticism of the government, the essence of the self-government function of speech (p. 278).

Libel doctrine has followed a self-government logic: the more public the issue or the person libeled, the greater the protection accorded the press. The Sullivan test applies to libels of “public officials”; to governmental employees who possess “substantial control over governmental affairs” (Rosenblatt v. Baer, 1966, p. 85); and to “public figures,” those who enjoy positions of “persuasive power and influence” (*Gertz v. Robert Welch, Inc., 1974, p. 345). Private figures may recover damages more easily (Gertz), especially if the matter at issue is “not a matter of public concern” (Dun and Bradstreet v. Greenmoss Builders, Inc., 1985).

Because a balance must be struck between the community’s protection of individual reputation and First Amendment values, these distinctions appear to make analytical sense. But uncertainties similar to those of obscenity law have arisen. First, the Court has not adequately defined what constitutes a “matter of public concern,” and its treatment of “public figures” has become somewhat arbitrary, suggesting a desire to restrict the domain covered by Sullivan (e.g., Time, Inc. v. Firestone, 1976). And the skyrocketing costs of libel defenses have made Sullivan’s protections somewhat less meaningful, as the mere threat of a lawsuit now looms as ominously as the remote possibility of an unfavorable jury decision.

Quasi-Protected Speech and New Categories

New vexing questions concerning free speech have sprouted up over the last quarter century, causing the balance between liberal and democratic principles to become increasingly indeterminate in some domains. In response, the Court has created new intermediate categories of protection, rendering the quality of the free-speech principle less distinct. For example, the Court has had to wrestle with the First Amendment implications of commercial speech and electoral speech, as well as with the problems posed by the rise of child pornography and such low-quality speech as nonobscene pornography or “indecent” expression. In addressing the latter cases, the Court has had to deal with such new media as cable television and the Internet.

Applying the traditionally less protective standard for expression in broadcast mediums, the Court has upheld a Federal Communications Commission rule limiting the times of day that nonobscene “indecent expression” may be broadcast on the radio (FCC v. Pacifica Foundation, 1978). The Court has also allowed communities to restrictively zone establishments that provide nonobscene pornography (Renton v. Playtime Theatres, 1986), and has supported the right of communities to require nude dancers to wear “pasties” and “Gstrings” in bars and night clubs (Erie v. Pap’s A.M., 2000). These cases represented quasi-protection of expression, as they involved regulations and limitations, not outright prohibitions.

In New York v. Ferber (1982), however, the Court created a new exception to free speech when it unanimously ruled that states may completely ban the making and marketing of child pornography because of the harm such pornography inflicts on the minors who are involved in its making. New York defined child pornography as “any performance which includes sexual conduct by a child under 16.” More recently, the Court had to deal with a question left unanswered by Ferber: may government prohibit the making, distribution, and possession of sexually explicit images that appear to have actual minors as subjects, but are in reality made either with adults as subjects, or with technological simulations that only appear to be actual minors (“virtual child pornography”). The harm of such “virtual” pornography lies in its potential effect on viewers, not in any damage done to minors in its production. Under the modern free speech principle, restricting expression in order to prevent the former harm is unconstitutionally paternalistic unless such expression poses an imminent danger of lawless conduct (Brandenburg). Virtual child pornography does not usually pose this type of harm, but is very troubling nonetheless.

The Court confronted this problem in 2002, when it invalidated the federal Child Pornography Protection Act’s provision against virtual child pornography. The Court ruled that the law was vastly overbroad because it ignored the limitations of established obscenity doctrine, especially Miller’s protections of material with artistic or literary value. As written, Justice Anthony *Kennedy said, the act could potentially apply to versions of Romeo and Juliet and films like Traffic and American Beauty (Ashcroft v. Free Speech Coalition, 2002, pp. 247–248). The Court will no doubt have to address revisions of this law in the near future.

(p. 1042) New technologies often present free speech questions, especially in the context of sexual expression. In 1996, the Court extended significant First Amendment protection to public access cable television stations in a case involving nonobscene sexual programming (Denver Area Educational Telecommunications Consortium, Inc. v. FCC); and in 1997, it struck down two provisions of the federal Communications Decency Act that prohibited the knowing transmission or display of “indecent” and “patently offensive” material to anyone under eighteen. Declaring the Internet a “vast democratic fora,” the Court applied strict scrutiny and found the CDA unconstitutionally broad and vague (*Reno v. American Civil Liberties Union, pp. 868–869).

Employing an antipaternalism rationale, the Court has also expanded the constitutional protection of *commercial speech and advertising, especially if the advertising presents truthful information to consumers (e.g., *44 Liquormart, Inc. v. Rhode Island, 1996). Though the Court has continued to apply a four-part test resembling intermediate-level scrutiny to commercial speech (Central Hudson Gas & Electric Corp v. Public Service Commission, 1980), it has begun to apply this test in a manner that sometimes seems closer to strict scrutiny, at least in cases involving truthful advertising. For example, in 2001, the Court applied a very rigorous form of intermediate scrutiny in invalidating Massachusetts’s regulations that severely limited the scope of public advertising and the point-of-sale advertising of cigars and smokeless tobacco products (Lorillard Tobacco Co. v. Reilly). Because false and misleading advertising do not contribute to the truth function of speech, the Court has continued to allow governments to prohibit such expression.

One area in which the Court has been increasingly more solicitous of democratic controls is the area of campaign finance. The Court has sustained congressional limitations on the amount of money that individuals and groups may contribute to candidates for federal political office (*Buckley v. Valeo, 1976), and agreed that corporations and nonprofit advocacy groups may be required to make such contributions from separate segregated funds rather than from their general treasuries (e.g, Austin v. Michigan Chamber of Commerce, 1990; FEC v. Beaumont, 2003).

Unless the Supreme Court decides to apply Brandenburg’s liberty principle to all forms of expression, it must assume the difficult burden of distinguishing protected from unprotected speech. Though it has expanded the sway of liberal antipaternalistic principles in recent decades, the Court’s free speech jurisprudence still accommodates certain democratic controls of speech. The distinction between protected and unprotected speech remains important, though the balance clearly favors the former.

Kent Greenawalt, Speech, Crime, and the Uses of Language (1989). Alexander Meiklejohn, “The First Amendment Is an Absolute,” Supreme Court Review 245–266 (1961). Frederick Schauer, Free Speech: A Philosophical Enquiry (1982). James Weinstein, Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine (1999).

Donald A. Downs