Freedom of Speech: Unprotected Categories and Limitations
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Name three categories of speech not protected by the First Amendment.
Examples include: incitement to imminent lawless action, defamation (libel and slander), obscenity, true threats, fighting words, and child pornography.
What test for 'incitement' was established in *Brandenburg v. Ohio* (1969)?
The 'imminent lawless action' test. Speech can only be banned if it is directed at inciting or producing imminent lawless action and is likely to incite or produce such action.
What is 'defamation'?
An intentional false communication, either written (libel) or spoken (slander), that harms a person's reputation. It is not protected speech.
What is the 'actual malice' standard for defamation cases involving public figures?
From *New York Times v. Sullivan* (1964), a public official must prove the publisher knew the statement was false or acted with 'reckless disregard' for the truth. This makes it difficult for public figures to win libel suits.
What is the three-part 'Miller Test' for determining obscenity?
From *Miller v. California* (1973), material is obscene if: 1 it appeals to the 'prurient interest' based on community standards, 2 it is 'patently offensive,' and 3 it lacks 'serious literary, artistic, political, or scientific value' (SLAPS test).
What is a 'true threat'?
A statement that a reasonable person would interpret as a serious expression of intent to commit an act of unlawful violence against a particular individual or group. True threats are not protected speech.
What are 'fighting words'?
Words directed at an individual that are so insulting they are likely to provoke an immediate violent reaction ('breach of the peace'). This is a very narrow category and rarely upheld by courts today.
Is commercial speech (advertising) protected by the First Amendment?
Yes, but it receives less protection than political speech. The government can regulate commercial speech that is false, misleading, or related to illegal activity.
What did the Supreme Court rule about student speech in *Morse v. Frederick* (2007), the 'BONG HiTS 4 JESUS' case?
The Court ruled that schools can restrict student speech at school-sponsored events if that speech can reasonably be viewed as promoting illegal drug use.
Why is child pornography not protected by the First Amendment?
The Supreme Court has held that the government's interest in protecting children from the sexual exploitation involved in producing such material outweighs any free speech value.
