Unprotected Speech

Description: Speech thatif it falls into one or more of several categoriesis treated by the Supreme Court as entitled to noor lessenedconstitutional protection because of the harm to society such utterances may cause.

Relevant Amendment: First

Significance: The Supreme Court played a role in defining the categories of unprotected speech and trying to achieve a balance between the interests of society and the liberty interests of the individual speaker.

In Chaplinsky v. New Hampshire (1942), the Supreme Court upheld the conviction of a Jehovah’s Witness who called a city marshal a “racketeer and a Fascist.” He was charged under a state law punishing offensive and derisive speech or name-calling in public. Writing for a unanimous Court, Justice Frank Murphy noted there were limited classes of speech that could be prevented and punished without violating the Constitution. These classes included “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” He noted these classes of speech were not necessary for the expression of ideas and were of such little social value that any benefit they imparted would be outweighed by society’s interest in “order and morality.”

Justice Murphy’s approach has been characterized as a two-tier theory of the First Amendment. Socially valuable speech is protected, but certain categories are unworthy of constitutional protection. After Chaplinsky, as the Court became more sensitive to free speech issues, it emphasized narrowly and precisely defining these categories, as well as introducing into each of these categoriesexcept obscenitycertain First Amendment exceptions.

Obscenity

In 1973 in Miller v. California, the Supreme Court announced its standard for obscenity. Writing for a five-justice majority, Chief Justice Warren E. Burger held three requirements must be met to find material obscene. First, the average person, applying contemporary community standards, must find the material appealing to his or her prurient interest. Second, the material must depict sexual conduct in a patently offensive way. Third, material is obscene if, taken as a whole—not simply focusing on isolated passages or pictures—if it “lacks serious literary, artistic, political, or scientific value.” In short, obscenity is “hard core” pornography.

Although the Court found no First Amendment value in obscenity, it consistently held not all sexual depictions or utterances were the equivalent of obscenity. Thusin Sable Communications v. Federal Communications Commission (1989)the Court stressed the government’s power to prohibit obscene speech does not extend to indecent speech. However, in other cases, the Court also recognized situations in which the government can ban profane or indecent language, including on television, radio broadcasts, and at public schools.

Words Against Others

Libel is a false and malicious statement made for the purpose of defaminginjuring the good name or reputation ofa living person. If the statement is spoken rather than written, the offense is called slander. Prior to 1964, such false statements were understood as totally unprotected by the First Amendment. However, in 1964in New York Times Co. v. Sullivanthe Supreme Court began a process of applying First Amendment standards to certain types of libel actions. In essence, if a libel action is brought by a public official or a public figuresuch as a well-known film starthat plaintiff must demonstrate that the false statement was made with actual malicedefined by the Court as knowledge of its falsity, or reckless disregard for truth or falsity.

Although Chaplinsky was not overruled, the Court never upheld a conviction solely for “fighting words” directed at public officials after that case. In R.A.V. v. City of St. Paul (1992), the Court held bans on fighting words must be “content-neutral”a city cannot ban only certain categories of hate speech, such as race- or gender-based hate speech. The First Amendment requires an all-or-nothing approach.

Incitement of Illegal Activity

Although not mentioned in Justice Murphy’s Chaplinsky listing, incitement to illegal activity was also traditionally considered unprotected speech. Much of modern First Amendment jurisprudence was developed in the context of speech advocating violent overthrow of the government, starting with Justice Oliver Wendell Holmes’s famous clear and present danger test, enunciated in Schenck v. United States (1919). The challenge for the Courtfrom the Red Scare of the 1920’s to the McCarthy era of the 1950s and the protests of the 1960shas been to protect society’s interests while also protecting political advocacy by unpopular dissidents.

In Brandenburg v. Ohio (1969), the Court put forward a standard that is highly protective of unpopular political speech and combines the best elements of the clear and present danger test with an approach—first enunciated in the World War I era by Judge Learned Hand—that focuses on the actual words of the speaker. According to the per curiam opinion in Brandenburg, the state may not “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless actions and is likely to incite or produce such action.” The Court reaffirmed its own earlier distinction between “mere abstract teaching” of the moral “propriety” or even “necessity” of resorting to force and violence, on one hand, and “preparing a group for violent action and steeling it to such action” on the other.

The Court also held certain categories of speechalthough not totally unprotectedmay be entitled to lesser First Amendment protection. This group includes sexually explicit but nonobscene speech in certain contexts, symbolic speechcommunicative conduct such as marching, picketing, wearing arm bands, or burning a U.S. flagand commercial speech like advertising.

Rating System

In 2022, the Virginia Beach Circuit Court tossed an obscenity case that attempted to prohibit the sale of two books to minors. At issue was whether the books feel into the category of obscenity. Also was the legal issue of whether a book could be deemed obscene for a specific age group, but not for others.

The two books identified in this legal case were Gender Queer by Maia Kobabe and A Court of Mist and Fury by Sarah J. Moss. The case originated in May 2022 as two Virginia politicians filed restraining orders to prevent the national bookseller Barnes and Noble from completing these types of sales until a book rating system for children could be implemented. In doing so, the politicians maintained they were not seeking to ban books but simply to restrict their sale. 

The move followed a Virginia law where common citizens could petition its courts to have a work categorized as obscene. If a court makes such a judgment, a non-compliant bookstore can face criminal penalties. The Virginia court, however, dismissed the case in citing its lack of authority to make such a ruling. In addition, the presiding judge found the Virginia law to be, on its face, invalid. The judge did not believe she was legally empowered to specify a book was obscene for only a specific age groupsuch as minors.

Bibliography

Abraham, Henry J., and Barbara A. Perry. Freedom and the Court. 7th ed. New York: Oxford University Press, 1998.

Greenwalt, Kent. Fighting Words. Princeton, N.J.: Princeton University Press, 1995.

Holpuch, Amanda. ”Virginia Judge Dismisses Case That Sought to Limit Book Sales.” New York Times, 31 Aug. 2022, www.nytimes.com/2022/08/31/us/virginia-obscenity-book-ban.html?smid=nytcore-ios-share&referringSource=articleShare. Accessed 3 Sept. 2024.

Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York: Random House, 1991.

Moomaw, Graham. “Judge Throws Out Obscenity Case Attempting to Restrict Sales of Books in Virginia Beach.” Virginia Mercury, 30 Aug. 2022, virginiamercury.com/2022/08/30/judge-throws-out-obscenity-case-attempting-to-restrict-sales-of-books-in-virginia-beach.  30 Sept. 2024.