In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech.
Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, and commercial speech such as advertising. As a general rule, lies are protected, with limited exceptions such as defamation, fraud, false advertising, perjury, and lying under oath during an official government proceeding. Even deliberate lies about the government are fully protected.
Hate speech is not a general exception to First Amendment protection. Per Wisconsin v. Mitchell, hate crime sentence enhancements do not violate First Amendment protections because they do not criminalize speech itself, but rather use speech as evidence of motivation, which is constitutionally permissible."Wisconsin v. Mitchell." Oyez, www.oyez.org/cases/1992/92-515. Accessed 17 Mar. 2023.
Along with communicative restrictions, less protection is afforded to uninhibited speech when the government acts as subsidizer or speaker, is an employer, controls education, or regulates the mail, airwaves, legal bar, military, prisons, and immigration.
Incitement
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".
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."
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. 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".
Incitement to suicide In 2017, a juvenile court in Massachusetts ruled that repeatedly encouraging someone to commit suicide was not protected by the First Amendment, and found a 20-year-old woman, who was 17 at the time of the offense, guilty of manslaughter on this basis. The judge cited a little-known 1816 precedent. On February 6, 2019, the Massachusetts Supreme Judicial Court ruled that the defendant acted with criminal intent, so her involuntary manslaughter conviction was ordered to stand. The United States Supreme Court declined to hear the case in January 2020, leaving in place the Massachusetts Supreme Court conviction.
False statements of fact
In the defamation case Gertz v. Robert Welch, Inc. (1974), the Supreme Court said that there is "no constitutional value in false statements of fact".Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). 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.
The Supreme Court has established a complex framework for determining which types of false statements are unprotected. There are four such areas which the Court has been explicit about; false statements of fact that are said with a "sufficiently culpable mental state" can be subject to civil or criminal liability. knowingly making a false statement of fact can sometimes be punished. Libel and slander laws fall under this category. negligently false statements of fact may lead to civil liability in some instances.Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985). some implicit statements of fact—those that have a "false factual connotation"—can also fall under this exception.Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
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. However, this category is not entirely clear, as the question of whether false historical or medical claims are protected is still disputed.
In addition, false statements made under penalty of perjury are subject to legal sanctions if they are judged to be material.
The 1988 decision in Riley v. National Federation of the Blind of North Carolina struck down a license requirement and limits on fundraising fees for telemarketers as unconstitutional and not narrowly tailored enough to survive First Amendment scrutiny. The 2002 decision Illinois ex rel. Madigan v. Telemarketing Assoc., Inc. upheld an Illinois telemarketing anti-fraud law against claims that it was a form of prior restraint, affirming consumer protection against misrepresentation was a valid government interest justifying a free speech exception for false claims made in that context.
The 2012 decision United States v. Alvarez struck down part of the Stolen Valor Act of 2005, which prohibited false claims that a person received a military medal.
18 U.S.C. § 1038 (False information and hoaxes) This law makes it a federal crime to knowingly convey false or misleading information about certain serious crimes or attacks, including biological attacks, under circumstances where the information could reasonably be believed.
Commercial speech
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". For example, false advertising can be punished and misleading advertising may be prohibited.Peel v. Attorney Reg. & Discip. Comm'n, 496 U.S. 91 (1990).
Commercial advertising may be restricted in ways that other speech can't if a substantial governmental interest is advanced, and such restriction supports that interest as well as not being overly broad.Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
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. In J.C. Penney Corporation vs Cynthia Spann, Cynthia Spann argued that J.C. Penney used false advertising on their sales. Spann won the case.
Speech owned by others
Another class of permissible restrictions on speech is based on intellectual property rights. Both copyrights and trade secrets fall under this exception. The Supreme Court first upheld this in Harper & Row v. Nation Enterprises (1985), where copyright law was defended against a First Amendment free speech challenge.Harper & Row v. Nation Enterprises, 471 U.S. 549 (1985). Also, broadcasting rights to air television and radio shows are not an infringement of free speech rights.Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). The Court has upheld such restrictions as an incentive for artists in the "speech marketplace".
Counterfeit currency
Laws against counterfeit United States currency, and even some photographic and artistic reproductions which could not be feasibly passed off as real currency, have been consistently upheld. Article I, Section 8 of the U.S. Constitution gives Congress the power to "provide for the Punishment of counterfeiting the Securities and current Coin of the United States".
Relevant cases include: J. S. G. Boggs, an artist using obviously fake renderings of currency to purchase goods William Michael Harnett, an artist stopped from painting early currency by the Secret Service in 1886 Wagner v. Simon (1974), which considered an obviously fake $30 bill with Richard Nixon Regan v. Time, Inc. (1984), which considered a Sports Illustrated cover photo that included a basketball hoop stuffed with $100 bills
Fighting words
In Chaplinsky v. New Hampshire (1942), the Supreme Court held that speech is unprotected if it constitutes "fighting words".Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 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".Cohen v. California, 403 U.S. 15 (1971). Additionally, such speech must be "directed to the person of the hearer" and is "thus likely to be seen as a 'direct personal insult.
"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.Virginia v. Black, 538 U.S. 343 (2003). 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.Watts v. United States, 394 U.S. 705 (1969). Additionally, threats of "social ostracism" and of "politically motivated boycotts" are constitutionally protected.NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
Threatening the president of the United States
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." 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; thus, for example, a person in prison could be charged.
Restrictions based on special capacity of government
As employer The government is not permitted to fire an employee based on the employee's speech if three criteria are met: the speech addresses a matter of public concern; the speech is not made pursuant to the employee's job duties, but rather the speech is made in the employee's capacity as a citizen;Garcetti v. Ceballos, 547 U.S. 410 (2006) and the damage inflicted on the government by the speech does not outweigh the value of the speech to the employee and the public.Connick v. Myers, 461 U.S. 138 (1983)Garcetti v. Ceballos, 547 U.S. 418-420 (2006) Specifically, speech is "treated as a matter of public concern" by reference to the "content, form, and context of a given statement". The exception with regards to balancing the harm of a statement and the value of the statement (the Pickering test) is done by considering the degree to which the speech either interferes with close working relationships, disrupts the office, or even has the potential to do either.Pickering v. Board of Education, 391 U.S. 563 (1968).
As regulator of the communications industry