The Freedom of Speech is one of the bedrock principles of our Country. It comes up all the time in news stories, every day conversation and is thrown about by the media constantly. But, from a purely legal standpoint, I find that few people really understand the parameters of Free Speech under the First Amendment. Well, I’ll try to change that a little here.
The Free Speech clause of the First Amendment states, in pertinent part, that “Congress shall make no law abridging the freedom of speech.”
It is important to note that the clause refers to the freedom of speech, not a freedom of speech. This is because under the Natural Law view of the drafters of the First Amendment, certain rights belonged to individuals and did not depend on government for their existence. Accordingly, upon the formation of the United States, the Founders wanted to make clear that while individuals ceded their natural rights to the Federal Government to rule over them, they did not cede away the Freedom of Speech.
Knowing this, the task of the U.S. Supreme Court (“SCOTUS”) has been to define the parameters of Free Speech. It has done exactly this over the course of many, many SCOTUS decisions. Below is a sampling of some of the more prominent types of speech which SCOTUS has found to be unprotected by the First Amendment.
Speech Which Incites Imminent Unlawful Conduct: under Brandenburg v. Ohio, speech which is (1) intended to persuade people to engage in (2) imminent unlawful conduct and is (3) likely to cause such imminent unlawful conduct is unprotected.
Fighting Words: pursuant to Chaplinsky v. New Hampshire, directed and abusive epithets — those which by their very utterance inflict injury injury or tend to incite an immediate breach of the peace — are unprotected.
Obscenity: speech is unprotected if (1) the average person, applying community standards, finds the work appeals to the prurient interest, (2) the work is patently offensive, and (3) a reasonable person, applying national standards, finds that the work lacks redeeming artistic, literary, political or scientific value.
Commercial Speech: speech which is misleading or false is generally unprotected; but, for paternalistic reasons, the government may regulate commercial speech if it has a substantial interest in the regulation (e.g., restricting alcohol ads in areas crowded with minors).
This is just a sampling of some of the exceptions to Free Speech; there are many more and they can often be very confusing. Many constitutional law professors have gone so far as labeling free speech jurisprudence as the tax code of the U.S. Constitution. Most maddening perhaps are the tiny nuances upon which a case can turn.For example, while words which incite imminent illegal activity are unprotected, SCOTUS has found that a KKK-esque burning of a cross on someone’s front yard can be protected. Yet — if such burning was done with an intent to intimidate — and it can be proven in court, then it is less protected.
In addition to such substantive nuances, procedurally governments can usually effectuate reasonable time, place and manner restrictions. Here’s a good example in my hometown of St. Louis:
The City of St. Louis is essentially arguing that these sign expressing discontent over eminent domain violates aesthetically conscious laws because it is too large. Meanwhile, the owner of this sign is saying that such a manner restriction is unreasonable in that it effectively negates the message of the speech.
Accordingly, this example brings us to one of the primary inquiries in free speech regulation: is the governmental regulation content based? A government cannot regulate speech because of the substance — the content — of which it communicates. However, it can regulate the manner it which it is communicated, so long as it is reasonable.
Because this is an enormous and vague area of the law, I’ll write about it more in the future.