8 Unprotected Categories of Speech: Introduction

The “two-track” approach to speech discussed in the previous chapter does not apply to all types of speech. In particular, the Court has long held that there are certain categories of speech that are “unprotected” by the First Amendment—although “less protected” would be a more accurate description. The distinction between core speech and unprotected categories of speech emerged in the 1940s, as an increasingly speech-protective Court moved away from the common-law approach where governments could broadly punish any speech thought disruptive or harmful to peace and social order. In developing a distinction between protected and unprotected speech, the Court made clear not all speech would be subject to greater judicial scrutiny.

The most famous early case to delineate between protected and unprotected speech was Chaplinksy v. New Hampshire (1942), whose facts involved an altercation between a Jehovah’s Witness (Chaplinsky) and a city marshal. After being arrested for “disturbing the peace,” Chaplinsky cursed at police officers and the marshal, for which he was later prosecuted under a New Hampshire law that prohibited offensive speech directed at other individuals in public places. In rejecting Chaplinsky’s claim that his speech was protected by the First Amendment, the Court wrote that:

… it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include 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. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

In this excerpt, you can see a partial list of what categories of speech the Court considered unprotected: obscenity, libel, and profanity/fighting words. You can also see its twin rationales as to why it thinks such speech does not deserve protection.

First, the Court argues that some speech does not contribute to the political process or the marketplace of ideas. A video of two people having sex, a false statement that damages someone’s reputation, or a stream of curses at someone outside a bar neither protects the democratic process nor advances the search for truth in ideas, art, or science. Speech that doesn’t provide such benefits merits less protection.

Second, the Court argues that some types of speech create harm that governments should have the power to regulate or prohibit. These could include true threats, harassment, fraud, or false labeling of food or medical products. Here we see the remaining force of the common-law view that governments can punish speech that causes harm, now limited to specific and clearly defined categories of harm rather than a broad power to protect “order.”

In the next three chapters, we will focus on three unprotected categories of speech that have gotten the most legal attention as well as undergone significant change over time: 1) fighting words, 2) libel and slander, and 3) obscenity. Illegal incitement, as addressed in a prior chapter, is also arguably such a category. Other unprotected categories of speech include:

• Fraud
• False or misleading commercial speech
• True threats (as opposed to exaggeration or joking)
• Harassment
• Child pornography
• Speech central to a criminal conspiracy
• Solicitation to commit a crime
• Perjury
• Blackmail
• Treason

The key problem for the unprotected categories doctrine is deciding what speech falls into an unprotected category and what speech does not. A medical textbook might contain nude drawings—could it be banned as obscenity? An otherwise clearly political speech might contain some profanity—can the speaker be punished for cursing? One concern for the Court is that governments, either intentionally or through carelessness, might draft laws to punish unprotected speech that chills or even bans protected speech as well. In the following chapters, the Court is mainly engaged in developing and maintaining these boundaries.

In line with the third general theme of this part of this section—growing protection for free speech—note as you read how the Court gradually narrows what speech remains unprotected as we move forward chronologically.