Freedom of Speech: Unprotected & Limited Speech

Core Concepts

Covers categories of speech that receive less or no protection from the First Amendment, such as incitement, obscenity, and defamation. Includes key legal tests like the Miller Test and the 'clear and present danger' doctrine.

Freedom of Speech: Unprotected & Limited Speech

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Can the government regulate commercial speech (advertising)?

Yes, commercial speech has less protection than political speech. The government can regulate advertising that is false, misleading, or promotes illegal products. Regulations must advance a substantial government interest.

What was the 'clear and present danger' test established in "Schenck v. United States" (\(1919\))?

This test, articulated by Justice Oliver Wendell Holmes, stated that speech can be restricted if it creates a 'clear and present danger' of producing substantive evils that Congress has a right to prevent (e.g., obstructing the military draft during wartime).

How did "Brandenburg v. Ohio" (\(1969\)) modify the 'clear and present danger' test?

The Court established the 'imminent lawless action' test. It ruled that the government can only punish advocacy of illegal action if that advocacy is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

What is defamation, and what are its two forms?

Defamation is the communication of a false statement that harms the reputation of an individual, business, or group. The two forms are libel (written defamation) and slander (spoken defamation).

What is the standard of proof for a public figure to win a libel lawsuit, as established in "New York Times v. Sullivan" (\(1964\))?

A public figure must prove that the defamatory statement was made with 'actual malice' — that is, with knowledge that it was false or with reckless disregard for whether it was false or not.

What is obscenity, and is it protected speech?

Obscenity is a category of speech that is not protected by the First Amendment. It refers to material that is sexually explicit and offensive, appealing to a prurient interest without any redeeming artistic, literary, political, or scientific value.

What are the three parts of the Miller Test, established in "Miller v. California" (\(1973\)), for determining if material is obscene?

1. Does it appeal to the 'prurient interest' by community standards? 2. Does it depict or describe, in a patently offensive way, sexual conduct? 3. Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value (LAPS)?

What are 'fighting words'?

Fighting words are words which "by their very utterance inflict injury or tend to incite an immediate breach of the peace." They are a category of unprotected speech, though the Court has rarely upheld convictions based on this doctrine in modern times.

Freedom of Speech: Unprotected & Limited Speech

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