Freedom of Speech Exceptions: Categories of Speech NOT Protected

Summary

This video explores the exceptions to the First Amendment's protection of free speech in the U.S. It covers six key categories: incitement, fighting words, obscenity, defamation, commercial speech, and other compelling government interests. Through landmark Supreme Court cases, the video explains how speech that incites violence, offends public order, or harms individuals’ reputations may be restricted. It also delves into the regulation of commercial speech and the need to balance free expression with public safety, national security, and other societal needs.

Takeaways

• 😀 Incitement to illegal actions is not protected by the First Amendment, as established in *Schneck v. United States* (1919) and clarified in *Brandenburg v. Ohio* (1969).
• 😀 The 'clear and present danger' test and the 'imminent lawless action' test are critical for determining when speech crosses the line into unprotected incitement.
• 😀 Fighting words, or words that provoke immediate violence or breach of peace, are not protected by the First Amendment, as shown in *Chaplinsky v. New Hampshire* (1942).
• 😀 Obscenity, which is determined by community standards and lacks serious artistic, literary, or scientific value, is not protected by the First Amendment, as defined in *Miller v. California* (1973).
• 😀 Defamation, or false statements that harm another person’s reputation, is unprotected. Public figures must prove 'actual malice' to win defamation cases, as established in *New York Times v. Sullivan* (1964).
• 😀 Commercial speech, including advertisements and promotions, has less protection than political speech and can be regulated for truthfulness or legality.
• 😀 Speech encouraging illegal activity may be regulated or prohibited, particularly in the context of commercial speech or false advertising.
• 😀 The government may limit free speech in certain cases when it serves a compelling interest, such as national security or fair trials, under strict scrutiny principles.
• 😀 Obscene materials can be restricted or banned based on community standards, though materials with redeeming educational or artistic value are generally not considered obscene.
• 😀 Zoning restrictions, such as those on adult businesses, may be allowed to limit the secondary effects of such businesses while still allowing free expression.
• 😀 No constitutional right, including freedom of speech, is absolute. Every right must be balanced against competing interests, such as public safety or justice.

Q & A

What are the six main exceptions to First Amendment protection of speech?

The six main exceptions to First Amendment protection are incitement, fighting words, obscenity, defamation, commercial speech, and cases where freedom of speech is outweighed by a more compelling government interest.

What does the 'clear and present danger' test refer to in the context of free speech?

The 'clear and present danger' test, established in Schenck v. United States (1919), holds that speech is not protected when it is likely to incite imminent illegal or harmful actions that the government has the right to prevent.

How did Brandenburg v. Ohio (1969) modify the standard for incitement?

In Brandenburg v. Ohio, the Supreme Court refined the incitement standard by establishing the 'imminent lawless action' test, which states that speech is only unprotected if it is intended to provoke immediate illegal action and is likely to cause such action.

What are 'fighting words' and why are they unprotected under the First Amendment?

Fighting words are defined as words that are likely to provoke an immediate violent reaction. They are considered unprotected because they serve no meaningful social value and can lead to violence or public disorder, as established in Chaplinsky v. New Hampshire (1942).

How does the Court define obscenity, and what test is used to determine if speech is obscene?

Obscenity refers to speech that appeals to prurient sexual interest, is offensive by community standards, and lacks serious literary, artistic, political, or scientific value. The *Miller v. California* (1973) test requires material to meet three criteria to be deemed obscene.

Why does the Supreme Court allow for regulation of commercial speech?

Commercial speech is subject to regulation because it is designed to promote products or services. Unlike political speech, it can be misleading or promote illegal activities. The Court allows regulation if the speech is false, misleading, or encourages illegal conduct, as established in cases like *44 Liquormart v. Rhode Island*.

What is the difference between defamation and freedom of speech?

Defamation involves false statements that damage a person's reputation and is not protected by the First Amendment. However, public figures or officials must prove 'actual malice' (knowledge of falsity or reckless disregard for the truth) to win a defamation lawsuit, as established in *New York Times v. Sullivan*.

How does the government balance First Amendment rights with other societal interests?

The government can limit free speech when necessary to achieve a compelling interest, such as national security or fair trials. This is assessed using 'strict scrutiny,' which requires the government to prove that the regulation is narrowly tailored and serves a significant, legitimate interest.

What does 'strict scrutiny' entail in First Amendment cases?

'Strict scrutiny' is the highest level of judicial review used in First Amendment cases, where the government must demonstrate that the regulation serves a compelling interest and is the least restrictive means of achieving that interest.

Can the government restrict speech that promotes illegal activity?

Yes, the government can restrict speech that promotes illegal activity, but only if it meets the definitions of incitement or fighting words. Political speech that encourages illegal activity is still protected unless it directly leads to imminent unlawful action.