United States free speech exceptions

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The Bill of Rights in the National Archives

Exceptions to free speech in the United States are limitations on the First Amendment's guarantee of free speech and expression as recognized by the United States Supreme Court. These exceptions have been created over time, based on certain types of speech and expression, and under different contexts. While freedom of speech in the United States is a constitutional right, these exceptions make that right a limited one.

Restrictions that are based on people's reactions to words include both instances of a complete exception, and cases of diminished protection. Speech that involves incitement, false statements of fact, obscenity, child pornography, threats, and speech owned by others are all completely exempt from First Amendment protections. Commercial advertising receives diminished, but not eliminated, protection.

Along with communicative restrictions, less protection is afforded for uninhibited speech when the government acts as subsidizer or speaker, is an employer, controls education, or regulates the following: the mail, airwaves, legal bar, military, prisons, and immigration.

Communicative impact restrictions[edit]

Incitement[edit]

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".[1][2] In Brandenburg v. Ohio (1969), the Court struck down a criminal 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.[3] This rule amended a previous decision of the Court, in Schenck v. United States (1919), which simply decided that a "clear and present danger" could justify a congressional rule limiting speech. The primary distinction is that the latter test does not criminalize "mere advocacy".[4]

False statements of fact[edit]

In Gertz v. Robert Welch, Inc. (1974), the Supreme Court decided that there is "no constitutional value in false statements of fact".[5] 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.[6]

The Supreme Court has established a complex framework in determining which types of false statements are unprotected.[7] There are four such areas which the Court has been explicit about. First, false statements of fact that are said with a "sufficiently culpable mental state" can be subject to civil or criminal liability.[8] Secondly, knowingly making a false statement of fact can almost always be punished. For example, libel and slander law are permitted under this category. Third, negligently false statements of fact may lead to civil liability in some instances.[9] Additionally, some implicit statements of fact—those that may just have a "false factual connotation"—still could fall under this exception.[10][11]

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.[12] However, this category is not entirely clear, as the question of whether false historical or medical claims are protected is still disputed.[13]

Obscenity[edit]

Under the Miller test (which takes its name from Miller v. California [1973]), speech is unprotected if (1) "the average person, applying contemporary community standards, would find that the [subject or work in question], taken as a whole, appeals to the prurient interest" and (2) "depicts or describes, in a patently offensive way, contemporary community standards,[14] sexual conduct defined by the applicable state law" and (3) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value".[15] Some subsidiary components of this rule may permit private possession of obscene materials at one's home.[16] Additionally, the phrase "appeals to the prurient interest" is limited to appeals to a "shameful or morbid interest in sex".[17][18]

The Court has also held that a person may only be punished if he knows the actual "contents of the material".[19] In Smith v. California (1959), the Supreme Court thus gave a defense of "reasonable ignorance" to an obscenity charge. The basis for this exception is that justices have believed that obscenity has a "tendency to exert a corrupting and debasing impact leading to antisocial behavior".[20][21]

Child pornography[edit]

The exception for child pornography is distinct from the obscenity exception in a few ways. Firstly, the rule is much more specific to what falls under the exception. Secondly, it is irrelevant whether any part of the speech meets the Miller test; if it is classified under the child pornography exception at all, it becomes unprotected.[22] The rule provides that speech is unprotected if it (1) "visually depicts" children below the age of majority (2) "performing sexual acts or lewdly exhibiting their genitals".[23] Unlike the rules for simple obscenity, private possession of child pornography "may be outlawed".[24]

While this exception is very concrete, it is also limited. It does not apply to pornography that looks like it involves children,[25] pornography that people think is harmful when shown to children,[26] or pornography that urges viewers to harm children.[27]

Fighting words and offensive speech[edit]

A Westboro Baptist Church protest was the subject of an "offensive speech" Supreme Court case in Snyder v. Phelps (2010)

In Chaplinsky v. New Hampshire (1942), the Supreme Court held that speech is unprotected if it constitutes "fighting words".[28] 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".[29] Additionally, such speech must be "directed to the person of the hearer" and is "thus likely to be seen as a 'direct personal insult'".[30][31]

Along with fighting words, speech might be unprotected if it either intentionally, knowingly, or recklessly inflicts severe emotional distress.[32] However, such a rule (which has never been explicitly decided) would be limited to private figures. The Court held in Hustler v. Falwell (1988) that satire which could be seen as offensive to a "public figure" is fully protected.[33] Such speech is rooted in a historical protection of political satire.[34] A notable example of a case involving offensive speech was the Court's decision in Texas v. Johnson (1989), which struck down a law criminalizing flag burning in Texas.[35]

Threats[edit]

Threats of violence that are directed at a person or group of persons that has the intent of placing the target at risk of bodily harm or death are generally unprotected.[36] 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.[37][38] Additionally, threats of "social ostracism" and of "politically motivated boycotts" are constitutionally protected.[39] However, sometimes even political speech can be a threat, and thus becomes unprotected.[40]

Speech owned by others[edit]

Another class of permissible restrictions on speech are based on intellectual property rights.[41] Things like copyrights or trademarks fall under this exception. The Supreme Court first held this in Harper & Row v. Nation Enterprises (1985), where copyright law was upheld against a First Amendment free speech challenge.[42] Also, broadcasting rights for shows are not an infringement of free speech rights.[43] The Court has upheld such restrictions as an incentive for artists in the 'speech marketplace'.[44]

Commercial speech[edit]

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".[45] For example, false advertising can be punished and misleading advertising may be prohibited.[46] Commercial advertising may be restricted in ways that other speech can't if a substantial governmental interest is advanced, and that restriction supports that interest as well as not being overly broad.[47] 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.[48]

Restrictions based on special capacity of Government[edit]

Government as Employer[edit]

The government is not permitted to fire an employee based on the employee's speech if either the speech is on a matter of public concern, the speech is not said as part of that employee's job duties,[49] or the damage caused by the speech is not outweighed by the value of the speech to the employee and public.[50][51] Specifically, speech is "treated as a matter of public concern" by reference to the "content, form, and context of a given statement".[52] 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.[53]

Government as Regulator of the Airwaves[edit]

Regulations of speech on broadcast radio and television are permissible when they are (1) narrowly tailored and (2) further a substantial government interest.[54] Interests that have been found "substantial" include shielding listeners from supposedly offensive ideas and shielding children from offensive expression. The Supreme Court has limited these rules to traditional broadcasting, refusing an attempt to apply this to the internet.[55]

Government as Educator[edit]

When the Government acts as a Kindergarten through twelfth grade educator, they are allowed to restrict speech in certain instances. The Supreme Court ruled in Tinker v. Des Moines School Dist. (1969) that only when speech "materially and substantially interferes with the requirements of appropriate discipline in the operation of the school".[56] Later court decisions added more situations where restrictions were possible, including student speech about drugs,[57] "vulgar and offensive" language,[58] and school-operated newspapers.[59] The primary basis for the educator-distinction is based on the concept of in loco parentis, the principle that the school functions as parents over the students, thus allowing broader discretion in limiting student speech and expression.[60]

Government as Subsidizer/Speaker[edit]

The most complex special capacity of the government is when it functions, in one way or another, as the Subsidizer of the speech in question.[61] As a general rule, the government can itself say whatever it wants to, even if this "favors one viewpoint over another".[62] But, the government may not impose conditions on how subsidy recipients spend money they get from other sources.[63] If the government is using the speakers to express its own message, it is constitutional.[64] But this analysis changes if the government is trying to encourage a "diversity of private views indiscriminately". If it is indiscriminate, then under Legal Services Corp. v. Velazquez (2001), the government must be acting in a viewpoint-neutral way. However, if the government is basing some judgment of "quality" on the views, then only "invidious viewpoint discrimination" is barred.[65]

Government as Regulator of the Bar[edit]

The basic principle behind government's regulation of the bar has greater power to regulate the speech of lawyers.[66] A balancing test is employed when the Court considers attorney speech. This tests weighs the "interest against the State's legitimate interest in regulating the activity in question [with] the interests of the attorney".[67] Thus, while commercial advertising by lawyers is generally protected, rules of professional conduct and ethical guidelines are still permitted.[68]

Government as Controller of the Military[edit]

With respect to the United States Military, the federal government has extremely broad power to restrict the speech of military officers, even if such a restriction would be invalid with a civilian. The Supreme Court affirmed this principle in Parker v. Levy (1974) when the Court held the military was essentially a "specialized society from civilian society", which necessitated stricter guidelines.[69] Since Parker, there have been few cases to issue more specific limits on the government's control of military expression.

Government as Prison Warden[edit]

When the government acts as controller of prisons, it has broad abilities to limit the free speech of inmates. Essentially any restriction that is "reasonably related to legitimate penological interests" is valid.[70] This broad power also extends to pretrial detainees and even convicts who are on probation or parole.[71] The only limit recognized by the Court is that the prison must provide an "alternate means of exercising that right" of speech, an alternate channel, that still allows legitimate speech to be expressed.

Government as Regulator of Immigration[edit]

The government may not criminally punish aliens based on speech that would be protected if said by a citizen.[72] On entry across borders, the government may bar non-citizens from the United States based on their speech, even if that speech would have been protected if said by a citizen.[73] Speech rules as to deportation, on the other hand, are unclear.[74] Lower courts are divided on the question, while the leading cases on the subject are from the Red Scare.

See also[edit]

Notes[edit]

  1. ^ Brandenburg v. Ohio, 395 U.S. 444 (1969).
  2. ^ Volokh 2008, p. 3
  3. ^ Volokh 2008, p. 5
  4. ^ Volokh 2008, p. 7
  5. ^ Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
  6. ^ Volokh 2008, p. 55
  7. ^ Volokh 2008, pp. 55–56
  8. ^ Volokh 2008, p. 56
  9. ^ Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985).
  10. ^ Volokh 2008, p. 57
  11. ^ Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
  12. ^ Volokh 2008, p. 61
  13. ^ Volokh 2008, p. 188
  14. ^ Smith v. United States, 431 U.S. 291 (1977).
  15. ^ Volokh 2008, p. 112
  16. ^ Stanley v. Georgia, 394 U.S. 557 (1969).
  17. ^ Volokh 2008, p. 113
  18. ^ Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985).
  19. ^ Smith v. California, 361 U.S. 147 (1959).
  20. ^ Volokh 2008, p. 114
  21. ^ Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
  22. ^ Cohen 2009, p. 2
  23. ^ New York v. Ferber, 458 U.S. 747 (1982).
  24. ^ Osborne v. Ohio, 495 U.S. 103 (1990).
  25. ^ Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
  26. ^ Cohen 2009, p. 13
  27. ^ Volokh 2008, pp. 128–129
  28. ^ Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
  29. ^ Cohen v. California, 403 U.S. 15 (1971).
  30. ^ Volokh 2008, p. 143
  31. ^ Camp 2005, p. 7
  32. ^ Volokh 2008, p. 144
  33. ^ Hustler v. Falwell, 485 U.S. 46 (1988).
  34. ^ Cohen 2009, p. 12
  35. ^ Texas v. Johnson, 491 U.S. 397 (1989).
  36. ^ Virginia v. Black, 538 U.S. 343 (2003).
  37. ^ Watts v. United States, 394 U.S. 705 (1969).
  38. ^ Volokh 2008, p. 166
  39. ^ NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
  40. ^ Volokh 2008, p. 167
  41. ^ Volokh 2008, p. 179
  42. ^ Harper & Row v. Nation Enterprises, 471 U.S. 549 (1985).
  43. ^ Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).
  44. ^ Volokh 2008, p. 180
  45. ^ Cohen 2009, p. 6
  46. ^ Peel v. Attorney Reg. & Discip. Comm'n, 496 U.S. 91 (1990).
  47. ^ Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
  48. ^ Cohen 2009, p. 7
  49. ^ Garcetti v. Ceballos, 547 U.S. 410 (2006)
  50. ^ Connick v. Myers, 461 U.S. 138 (1983)
  51. ^ Volokh 2008, p. 361
  52. ^ Volokh 2008, pp. 361–362
  53. ^ Pickering v. Board of Education, 391 U.S. 563 (1968).
  54. ^ Volokh 2008, p. 460
  55. ^ Reno v. ACLU, 521 U.S. 844 (1997).
  56. ^ Tinker v. Des Moines School Dist., 393 U.S. 503 (1969).
  57. ^ Morse v. Frederick, 127 S. Ct. 2618 (2007).
  58. ^ Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1968).
  59. ^ Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
  60. ^ Camp 2005, p. 4
  61. ^ Johnson 2001, p. 353
  62. ^ Volokh 2008, p. 410
  63. ^ Johnson 2001, p. 354
  64. ^ Rust v. Sullivan, 500 U.S. 173 (1991).
  65. ^ Volokh 2008, p. 412
  66. ^ Volokh 2008, p. 476
  67. ^ Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).
  68. ^ United States District Court v. Sandlin 12 F.3d 861, 867 (9th Cir. 1993)
  69. ^ Parker v. Levy, 417 U.S. 733 (1974).
  70. ^ Thornburgh v. Abbott, 490 U.S. 401 (1989).
  71. ^ Volokh 2008, p. 490
  72. ^ Bridges v. Wixon, 326 U.S. 135, 148 (1945).
  73. ^ Kleindienst v. Mandel, 408 U.S. 753 (1972).
  74. ^ Volokh 2008, p. 498

References[edit]

  • Camp, Julie Van (2005). "First Amendment". Professor of Philosophy. California State University, Long Beach. Retrieved 1 January 2012. 
  • Cohen, Henry (16 October 2009). "Freedom of Speech and Press: Exceptions to the First Amendment". Legislative Attorney. Congressional Research Service. Retrieved 1 January 2012. 
  • Johnson, Jay (2001). "Note: The Interaction Between Statutory and Constitutional Arguments in Legal Services Corp. v. Velazquez". Journal of Law and Politics 17 (1): 353–372. 
  • Volokh, Eugene (2008). First Amendment and Related Statutes: Problems, Cases and Policy Arguments (3rd ed.). Foundation Press (published 12 May 2008). ISBN 978-1-59941-338-9. 

External links[edit]