So to Speak Podcast Transcript: Should there be categories of unprotected speech?

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: welcome back to So to Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am, as always, your host Nico Perrino. And our guest today is going to be familiar to regular So to Speak listeners. We have FIRE Chief Council Bob Corn-Revere here to my right. Bob, good to see you.

Bob Corn-Revere: Nico, always happy to be here.

Nico Perrino: And we have our general counsel, Ronnie London, who on the second take of the introduction is not shuffling his papers. Ronnie, thank you for being here.

Ronnie London: Yeah, thanks for pointing that out man.

Nico Perrino: I couldn’t let it go. So, Ronnie, ever since you came aboard here at FIRE, you just told me it’s been three and a half years now, you’ve precipitated this ongoing internal debate over whether categorical exceptions to free speech are justified. These are exceptions for things like defamation, obscenity, true threats, and incitement to imminent lawless action. So, I thought it was finally time we had it out here on So to Speak. So, Ronnie, since you’re the debate precipitator, why don’t you set us up here by explaining your thoughts on this question?

Ronnie London: Right. Thanks, Nico. You’re probably being overly generous in calling it an internal debate so much as it is I have a kooky idea and everyone else is, “Shut the fuck up, that’s stupid.”

Nico Perrino: So, we’ve had an ongoing Ronnie London monologue for three and a half years that everyone else at FIRE is forced to listen to.

Ronnie London: Yes. And regular listeners will know, and who know me, know that’s probably a lot more accurate. This is actually a perfect Friday the 13th topic, which is when we’re recording this. Because it is a little bit nutty, I admit that. To be clear, this is not a FIRE position or even a really fully formed position on my part. It’s something I’ve just been thinking about. I’ve presented this among other places besides in the hallways at FIRE, whoever will listen to me spew it. I even trotted it out at the First Amendment Lawyers’ Association meeting and in a room full of First Amendment practitioners and diehards I couldn’t even get a single taker.

Nico Perrino: So, did you get crickets then?

Ronnie London: No, no you never get crickets at a FALA meeting. That will never happen. So, what it is is I have grown increasingly uncomfortable with the idea that there is this concept of categories of unprotected speech. Each of the categories themselves are problematic, which is among the reasons that I’d love to see their elimination. But the whole idea that things can be categorically unprotected if they simply meet a particular definition had always been a little bit troubling for me. Really, it’s about maybe trying to claw back one of the arrows in the government’s quiver.

When the government regulates speech it has the burden to prove that they’ve satisfied whichever constitutional standard applies, but they still have a goodly number of advantages. One, as a co-equal branch of government, they basically have homecourt advantage when they’re in front of a judge. Two, they get a presumption of constitutionality for duly enacted legislation. Three, the first thing that they always pull out of the quiver is, “No, no, no, we’re not regulating speech, we’re just regulating conduct.” When that fails, because it’s always bullshit, they fall back on, “Okay, we’re just regulating unprotected speech and here are the categories that it falls into,” and they try and shoehorn it into one of the categories like the stepsisters in Cinderella with the glass slipper.

The problem with this is as an advocate, you’ve got to cut through all this bullshit when you’re briefing and arguing against the government before you can ultimately get to the real point, which is that it doesn’t satisfy the necessary burden. So, I was thinking if we could eliminate one of those and stop having those conversations. It might make the sledding a little bit easier for First Amendment advocates. But again, whether there’s a doctrinal basis for doing it, and whether it even makes sense is kind of up in the air. So, I’ve been rehearsing this with any First Amendment advocate or interested party I can to poke holes in it and boy have they.

Nico Perrino: And Bob is one of your interlocutors, I guess, at a previous FALA meeting.

Ronnie London: Yes.

Nico Perrino: And Bob, what was your take on Ronnie’s ruminations here?

Bob Corn-Revere: Not just at a previous FALA meeting. A little more background here may help fill out the scene. Not all of your listeners may be aware that Ronnie and I worked together in private practice for 20 years before he came to FIRE. Then I followed shortly after that. We’ve been having this conversation for years, including once debating the proposition at a First Amendment Lawyers’ Association meeting, at which, as Ronnie just reminded me, I had forgotten that he didn’t get a single taker on this proposition. Thank you Ronnie.

But it requires going back into a little bit of First Amendment history to really understand how these categories came about. First of all, keep in mind that the courts and the Supreme Court in particular hadn’t found it in favor of a First Amendment right for the first 141 years of our nation’s history. It wasn’t until the early 1930s, 1931 to be exact, that it began to develop what we think of as First Amendment doctrine. And so, in doing that, one of the things when it was first articulating First Amendment rights was to say, well, not all speech is protected.

And I think most people who have been practicing this area or studied First Amendment law would agree that the First Amendment is not an absolute in that it doesn’t protect everything that involves the use of words. You can’t go into a bank, hand the teller a note that says give me all your money or I’ll kill you. It uses words, but it’s not protective. Or certain expressive acts, assassination carries a great deal of political meaning but it’s not a protected act.

Nico Perrino: Or falsely shouting fire in a crowded theater, that’s the one you see trotted out the most often from non-lawyers.

Bob Corn-Revere: Most often and that’s because it comes from Oliver Wendell Holmes in his Schenck opinion when he says that not all speech is protected. But he did say it doesn’t protect you shouting fire in a crowded theater falsely and causing a panic. You have to remember that those are the additional parts of that what evolved as a test and later became a significant test. But as the courts began to articulate what was protected, they set that apart from what wasn’t protected. So, in 1931 in Near v. Minnesota, when the court first explained that prior restraints of speech are forbidden for the most part under the First Amendment.

Nico Perrino: So, a prior restraint, just for our listeners who aren’t familiar with the concept, is when the government comes in and tells you you can’t say or publish this thing before it ever goes out into the world. And the idea being that this is the most dangerous sort of censorship, but you might be able to still be held liable for what you say after it’s published.

Bob Corn-Revere: Right, it is a restriction imposed in advance of speech. The paradigmatic examples of that are from English history, press licensing, that kind of thing. In Near v. Minnesota, the court said that the First Amendment largely prohibits prior restraints, and the First Amendment goes further than just prior restraints. It also prohibits the government from imposing other kinds of restrictions on speech. But then it went on to say that no one would question but that the government can prevent things like publishing the sailing times of transport ships or the location of troops. It also mentioned obscenity in one of those things.

So, while it was defining that speech is protected and it’s presumptively protected, not all speech is protected. Then later as the court began to develop First Amendment doctrine in the 1930s and early 1940s you would have some elaboration on that. And we can talk about the Chaplinsky case, if you want.

Nico Perrino: Yes.

Bob Corn-Revere: But that’s, again, where the court basically said there are certain categories of speech that aren’t protected. This was, keep in mind, when the First Amendment was in a very formative stage when the courts were beginning to define what was protected and also what wasn’t protected. And it came up with categories that then over time got further developed and refined. Without going too much into the history right now, what I will say is that in the way that this developed and the categories being better refined, better narrowed over time, on balance it has been a force for more speech protection than less, to confine it to these doctrines to certain categories. And it's done it in a couple of ways.

One, it has allowed the Court to say all speech is presumptively protected, that the First Amendment creates this baseline presumption that does not exist in other political systems.

Nico Perrino: But Ronnie, didn’t you just say the opposite, that for legislative enactments, the presumption is the legislation is valid?

Ronnie London: Funny that. So, all speech is presumed until proven otherwise. And at the same time, all legislative enactments, including those on speech, are presumed constitutional until the government fails to carry its burden. It’s an interesting tension.

Bob Corn-Revere: Well, it is a bit of a tension, but it’s also why courts have in First Amendment cases lowered the presumption in favor of constitutionality of legislation. Once you show that legislation focuses on an area of speech, then it changes the government’s burden.

Nico Perrino: So, I want to start at the basics here. If you look at the plain text of the First Amendment it reads, “Congress shall make no law abridging freedom of speech.” Seems pretty plainly stated for me. Why is no law, now law?

Ronnie London: Well.

Bob Corn-Revere: Two things about that. First, if you accept that literal statement, that means the bank teller note is protected by the First Amendment, so now we can rob banks as long as we’re using words instead of other techniques. The second thing is keep in mind it says Congress shall make no law. Do you really want to limit it just to that? The First Amendment over time has developed into the understanding that the government shall make no law. And after the 14th Amendment was incorporated into the states, it also meant the state governments, not just the federal government. So, that kind of literalism isn’t all that speech protective if you want to go that way.

Ronnie London: Yeah, I was going to say the same thing. If you want to have literalism, you have to take it in all its flavor. And that includes limiting it only to Congress. Although, on the bank teller example, yes, maybe you would say that if you were being a literalist the note would be protected and we can rob banks, and maybe that’s true up until the point they hand you the money. Now you’ve stopped speaking and you’ve taken something that doesn’t belong to you, and that’s purely conduct. And we can maybe still criminalize that.

I want to be clear. My proposal here is not that all the speech that falls into all of these categories should necessarily be protected or unpunishable or all regulable. I’m really only questioning the approach of treating them categorically and using these definitions that these categories carry to render speech per say unprotected and punishable, regulable. Although with a couple of the categories, I am arguing that everything that falls in the category should be okay.

Bob Corn-Revere: But therein lies the problem with your approach. Because once you agree with the opening premise that not all speech is protected in all of its uses by the First Amendment, then you have to have a system for dividing what is protected from what is not protected. And if you don’t have some kind of categorical approach, then you’re left with just balancing and saying okay, this is an important enough government interest that we’re going to allow the government to restrict speech because of this, as opposed to having a framework for trying to maintain the premise that speech is presumptively protected.

It’s the categorical approach that has allowed, I think, greater protection over time as First Amendment law has protected.

Nico Perrino: And also to give the government guidance as to what is and isn’t protected when it’s thinking about regulating speech.

Ronnie London: Right, because they’re so scrupulous about following that guidance.

Nico Perrino: Well, what I’m saying is they can be less scrupulous if there were no sort of guidelines.

Ronnie London: When you’re saying they’re balancing, what that really means is you’re going to have to apply something like, depending on the nature of the regulation, strict scrutiny or intermediate scrutiny or rational basis review. Because everything that falls outside of these categories of unprotected speech is subject to regulation, like you say. I’m not advocating that all speech should be constitutionally protected, that the government shouldn’t be able to do anything. I’m just saying what do we do doctrinally and structurally to determine when the government can act and when it can’t. Outside of these categories, the government does have to satisfied what I think are fairly called balancing tests, strict scrutiny, compelling government interest, narrow tailoring through directly advancing it, and less restrictive means.

Intermediate scrutiny slightly less, but it’s still a balancing test. So, if that balancing test is okay everywhere else besides these categories, I’m not that broken up about bringing it into these categories instead and maybe getting rid of their definitions and per se approaches.

Bob Corn-Revere: No, but I mean the fact that speech falls into one of these categories doesn’t make it invisible to the First Amendment. That was something that the Supreme Court decided in RAV v. St. Paul, which was a case that involved cross burning and whether or not that could be prohibited. Even though the city was trying to describe this as unprotected speech, the court’s opinion by Justice Scalia made clear that even if you’re dealing with an area of unprotected speech, you still have to satisfy First Amendment concerns, and you can’t apply things like viewpoint-based restrictions and things like that.

So, normal types of First Amendment analysis will still apply, even under categorical approach. But the categorical approach has its uses.

Ronnie London: Right. Obscenity, child pornography, incitement, true threats, fighting words, speech integral, defamation, false advertising. So, if it falls into one of those categories, those are all content based categories. They look at the content of the speech. And so, when you say it falls into one of those categories, does that mean that because it becomes unprotected – when I say unprotected, I mean it’s punishable or regulable without any further showing. Does that mean that it automatically satisfies strict scrutiny or are we just basing it on –

Bob Corn-Revere: No.

Ronnie London: Well, but you say no, but if you say okay, this satisfies the test for obscenity or this satisfies the test for fighting words, then that’s it, that’s the end of the analysis, right?

Bob Corn-Revere: Well, no it’s not.

Ronnie London: And that’s the problem with the categories, is some of them actually capture a fair bit that on a lot of sets of facts, really I think ought not be able to be criminalized as speech.

Bob Corn-Revere: But it’s important to look at where it began and where we are now. It began in the 19th century, before that actually, but in the United States it began to develop in the 19th century under Anthony Comstock with enforcement of the Comstock Act. There anything that was considered to be immoral in any way, in his very expansive view of what that meant, could be prohibited as being obscene.

And that law, the Comstock Act, was applied to prohibit everything from art to information about contraceptives to information about abortion to home medical guides because Comstock was convinced that it taught women too much about their own bodies, on and on and on. Anything that he thought was immoral. It applied under the only judicial test that was available at the time, which was imported to the United States from Victorian England. So, there you have your categorical approach that is very bad. It doesn’t protect speech at all.

But over time as the Court began to develop a more refined categorical approach, it began to do what we call constitutionalizing an area of law. It happened with obscenity. It happened with defamation, And it has with all of these other unprotected categories where the court begins to develop very high hurdles, very high barriers before something falls off the edge of the constitutional earth for First Amendment protection purposes. That begins in the United States in the middle of the 20th century when the court was really beginning to define what obscenity means, starting in 1957 with Roth v. the United States, developing a test for obscenity that began to look at the work as a whole, which hadn’t been the case before, and look at whether or not the work has serious merit, and began to look at whether or not the work applied primarily to the period interest, to adults and just the most –

Nico Perrino: This would be like the book, you have to look at the whole of the book. You have to see if it has artistic value, if it appeals to the period interest, that is to sexual interest.

Bob Corn-Revere: Exactly.

Ronnie London: Well, a morbid interest in sex, not just a interest in sex.

Bob Corn-Revere: Yeah, a morbid and basically perverse interest in sex, which is something –

Nico Perrino: What does that even mean, a morbid interest is sex? Is that a sort of fetish or something?

Bob Corn-Revere: That’s been part of the problem of the obscenity definition since its inception.

Ronnie London: You’re making my argument for me, man.

Bob Corn-Revere: I understand. And this is one of the reasons why I think this is a category we could do without. But that being said, as the court began to refine the definition for obscenity, just as it did for defamation, it began to exclude more and more things from the risk of being prosecuted under obscenity. So, you go from the 19th century where you have a wide range of things that were and are prohibited as being obscene to the 1950s and ‘60s where they’re still prosecuting spicy novels and in some cases comedians for obscenity to the 1970s when you’re doing things like prosecuting hardcore porn films like “Deep Throat.” To now when that basically doesn’t happen anymore. It does a little bit, but primarily the interest in enforcement in this area has moved on to child pornography, which is a whole other category that is separate from obscenity.

And so, what is permissible over time as the test has become more constitutionalized has gotten more and more expansive. And that’s been true in all of these categorical areas of trying to fence off those areas that are unprotected. And because of that, levels of protection for speech in general in the United States has gotten much more expansive than it was in the past.

Ronnie London: I think we’re in agreement here, I’m glad it’s a high burden to be declared obscene, and I’m glad it’s an increasingly shrinking category. And you or anyone else who knows me won’t be surprised to hear me say I’m not satisfied. And –

Nico Perrino: Let’s talk about what is the standard? Is this the Miller –

Ronnie London: Yeah, it’s the Miller test.

Nico Perrino: So, it’s whether the average person applying contemporary community standards would find that work taken as a whole appeals to the prurient interest, whether the words depicts or describes in a patently offensive way sexual conduct, and whether the work taken as a whole lacks serious literary, artistic, political, and scientific value.

Ronnie London: Right, correct.

Nico Perrino: Is there anything that one could publish right now that would be on the other side of the Miller test? That is to say punishable, censorable? Or is this pretty much for all intents and purposes a dead –

Bob Corn-Revere: Well, not in print. You wouldn’t –

Ronnie London: Probably not in print, yeah.

Bob Corn-Revere: You wouldn’t be able to – I believe you wouldn’t be able to successfully prosecute a racy novel, even if it’s wall-to-wall descriptions of sex.

Ronnie London: How about if it’s wall-to-wall descriptions of sex with children?

Bob Corn-Revere: I think it would be unconstitutional to try to prosecute something that is just fictional descriptions of sex with children because, again, what sets child pornography apart for obscenity is the fact that it is the visual depiction of actual child abuse, of sexual child abuse. And for that reason, it is prohibited. Not as a branch of obscenity, but as a speech that is integral to criminal conduct. To produce it you are engaging in criminal conduct.

Nico Perrino: What if there is no criminal conduct involved, it’s like an animated depiction, for example.

Bob Corn-Revere: In that case, then it is protected speech and the Supreme Court said that in the Free Speech Coalition case.

Ronnie London: That’s not entirely true. You can in fact create child pornography without engaging in child abuse. And we know this from the raft of cases where someone has taken a particularly innocent picture of kids frolicking naked on a beach, cropped it the wrong way, and spent the rest of their lives in jail. Now, I’m not advocating that, don’t get me wrong. But it does begin to show some of the over breadth of the child pornography definition. I don’t want to spend too much time getting into it.

Nico Perrino: So, it could be a parent who’s taken a photo of their kids in the bathtub for example, and they just think it’s a cute photo.

Ronnie London: That’s right.

Bob Corn-Revere: That has happened. And there are also cases involving that where the parent was acquitted. But again, that is sort of an outlier in those areas.

Bob Corn-Revere: And I agree with Ronnie that the categories aren’t perfect. It’s one of the reasons why I think we can do without the obscenity category all together and just focus on protecting children from actual abuse.

Ronnie London: Yeah, but this does illustrate why the categorical approach is problematic under these categories because as a practical matter, once you satisfy the definition, that’s the end of the analysis. There’s no as applied challenge. There’s no say hey, there’s no child abuse here, I was 17 years, 360 days old and my girlfriend asked for that picture. That’s still going to put you on the sex offender registry and it's still going to potentially put you in jail. And there’s no opportunity whatsoever to argue that this does not serve any of the interests that the government has in prohibiting this speech.

Bob Corn-Revere: But you’re still faced with the problem of separating protected speech from unprotected speech, regardless of what test you use.

Ronnie London: Sure.

Bob Corn-Revere: So, you’re still going to face that same fact pattern and that same problem, regardless of whether or not you’re dealing with a categorical approach or some other approach to protecting First Amendment –

Ronnie London: But with every other approach, an as applied challenge is available to you. With a categorical, it is not.

Bob Corn-Revere: I’m not sure about that proposition.

Nico Perrino: Well, explain it for us because some of our listeners might not be familiar with this as applied challenge.

Ronnie London: Right. So, you’ve got a statute that prohibits or criminalizes certain kind of speech. You can challenge it on its face. You can say in every application or in an overwhelming number of application, or it’s substantially overbroad, that is it’s unconstitutional applications substantially outweigh its legitimate sweep, it’s plainly legitimate sweeps.

Nico Perrino: So, someone who’d be likely to fall under that statute could challenge it on its face without that statute ever having applied to them.

Ronnie London: Right.

Nico Perrino: The as applied challenge is –

Ronnie London: As applied challenge is okay, maybe there are some constitutional applications, but in this instance as applied to me with this particular speech, it’s still unconstitutional because the government can’t carry its burden of showing it has a compelling interest in restricting this speech, that this speech creates a problem that this is the least restrictive means of addressing whatever that interest is as to this speech. With a categorical approach, you lose that opportunity.

Nico Perrino: Okay. So, obscenity, it seems like both of you don’t like this is as a category, even if, Bob, you don’t like Ronnie’s argument that we should get rid of categories all together.

Bob Corn-Revere: That’s right.

Nico Perrino: So, let’s tie a nice bow on obscenity and move on to fighting words.

Nico Perrino: We’re going to 1942 where you have a Jehovah’s Witness, Walter Chaplinsky who’s in Rochester, New Hampshire. He’s passing out pamphlets calling organized religion a racket. And a large crowd apparently doesn’t like this message, begins blocking the roads causing a disruption. You have a police officer who comes up to Chaplinsky, takes him to the police station, presumably for disturbing the peace. And the argument or what’s said to have occurred is Chaplinsky called the police offer a God damned racketeer and a damn fascist. Chaplinsky agrees with the words that are featured in the complaint to a large part, but says that he did not use the Lord’s name in vain.

Bob Corn-Revere: That’s right.

Nico Perrino: He called the police officer a damned racketeer and a damned fascist. The case makes its way up to the Supreme Court where the Supreme Court rules that fighting words are those words which by their very utterance inflict injury or tend to insight an immediate breach of the peace and it has been well observed according to the court that such utterance are no essential part of any exhibition 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. So, this seems like a balancing test, right, or sorts?

Bob Corn-Revere: Well, again, it focuses on the relative value of speech. It also has a smile when you say that partner exception because it says those words are likely to provoke a fight unless accompanied with a disarming smile. So, there is that. Chaplinsky is really a low point in trying to develop these categories. It was the first case to articulate this test for fighting words. It’s interesting the context in which it came up. You mentioned it was a Jehovah’s Witness. The Witness’ were responsible for a great deal of development of First Amendment law, this was one of them. Their lawyer, Hayden Covington, argued 44 cases in front of the Supreme Court and won 37 of them. This wasn’t one he won, sadly.

The problem you had this guy out there haranguing a crowd. But it happened in 1942 in the middle of World War II where the Jehovah’s Witnesses were basically hated by everybody because they refused to salute the flag. And in fact, in the melee that followed, Chaplinsky appearing on the street, one of the crowd members tried to grab a flagpole and impale him with him, that he was so inflamed by the fact that this religious guy would not salute the flag. So, the cop comes along, takes Chaplinsky in and not the guys who are trying to impale him with a flagpole. Chaplinsky calls him a damned fascist and a God damn racketeer. Hardly what you would think of as fighting words today. But nonetheless, this doctrine gets developed.

But what’s important to recognize about it is that like those other categories that I was talking about, it has been continually narrowed over time to the point that most people think that fighting words doesn’t really exist as a thing anymore. Just last term in Counterman v. Colorado, a case analyzing the category of true threats, both the majority opinion and the concurring opinion made the point that there hasn’t been a prosecution for fighting words upheld in 80 years, which is really saying something. Now I know what Ronnie’s going to say, and maybe I should just shut up and let him say it. Go ahead, tell me why fighting words is still a thing.

Ronnie London: I thought it wasn’t a thing also. You have a Fourth Circuit decision that says one of the worst racial epithets we have isn’t enough to be fighting words. And if that’s not, I can’t imagine what is. And yet, every few months I see a case that upholds a prosecution or arrest or at the very minimum lets police off on qualified immunity by invoking fighting words as a category. One of my problems with obscenity is that it relies on a contemporary community standard, which runs completely counter to the whole idea of having a First Amendment that protects the views of people that don’t fall within the contemporary community standard –

Nico Perrino: The minorities, the dissenters.

Ronnie London: Much in the same way, the whole idea of having protection for free speech, one of the values of it is what we call the eternally radical idea around here, that you should resolve your differences, resolve your disagreements with words, not with force. That should include words that are directed to you that say bad things only about you to you. And yet we have a doctrine under that protection for free speech where we say but if it upsets you enough, then maybe it’s not going to be protected. This strikes me very much like the awful look what you made me do line that abusers use. I think it just puts the incentive in the wrong place. The incentive should not be on the speaker to hold their tongue. It should be on the recipient of the words to hold their fists.

And I just don’t think that there’s any place in a speech protective regime to say that if it’s upsetting enough, if your emotional distress of hearing it is enough, then a violent reaction isn’t justified because you’ll still get arrested for the assault, but we can still punish the speaker. That has ramifications outside of fighting words, by the way.

Bob Corn-Revere: Again, we’re in violent agreement on this, oddly enough, for fighting words because the fighting words doctrine has faded away to next to nothing. Now I will acknowledge that every now and again you will find a prosecution for fighting words, just like in 2014 in Missouri there was a prosecution for flag burning. Notwithstanding the fact that the Supreme Court in 1989 and 1990 issued two opinions saying that that was a form of protected speech.

So, yeah, it does take time for these things to fade away completely, but that being said, the court has made increasingly clear over time that speech doesn’t have to have a certain value before its protected, which chips away at some of the foundations underlying what was applied in the area of obscenity. We also have an increasing number of cases saying that it doesn’t matter if speech upsets you, that that is protected speech. So, again, that’s all indicative of progress. And all of those exceptions that you’re talking about have grown increasingly narrow over time.

Ronnie London: Well then great, we’re making great progress here. We’re going to cross obscenity off the list, we’re going to cross fighting words off the list.

Bob Corn-Revere: Yes.

Ronnie London: If we can get all of them off the list, then I can drop my whole kooky idea.

Bob Corn-Revere: Well keep in mind commercial speech was on that list until 1976.

Ronnie London: I understand. I’m trying to speed things along here, man. How long has it been since they’ve crossed one off the list? It’s been a little while.

Nico Perrino: Let’s go to defamation next because I think there might be a little bit more agreement here than there would be on incitement. I’m trying to scale up where I think we’ll find the most disagreement. I knew obscenity you guys would largely agree on. I know fighting words you would largely agree on. Defamation, now this is a category of speech that I believe Hugo Black, the Supreme Court justice, thought shouldn’t exist. I know Nat Hentoff, the old civil libertarian, because there’s a debate on YouTube where he argues against defamation as a categorical exception to free speech.

For our listeners who aren’t familiar with this, they might hear of defamation as libel or slander, those are two types of defamation. But defamation is a false statement of fact that is communicated to a third party and is made with the requisite guilty state of mind and harms an individual’s reputation. It’s got to be a statement that’s asserted as a fact and capable of being proven false. Now the standard’s a little different for a public figure. This comes from New York Times v. Sullivan. In that case the person speaking – or the person who is suing for defamation must prove actual malice, namely that the speaker made the statement either with the knowledge of its falsity or with reckless disregard for the truth. Should this be a categorical exception to the First Amendment?

Ronnie London: This is the one that I always say that I’m not sure it actually on the list or belongs on the list because –

Nico Perrino: The list of what?

Ronnie London: Of unprotected categories. The fact of the matter is, if you think about defamation, or really any lies, especially in recent Supreme Court precedent, any lies – it’s actually a really highly protected category of speech. I mean, you have to jump through all of these hoops –

Nico Perrino: So, what you’re saying –

Bob Corn-Revere: Now you’re proving my –

Ronnie London: I am. I’m giving you this one, man. I’m giving you this one. And you also have to have damages. I would add that to the elements that you just listed.

Nico Perrino: What does that mean?

Ronnie London: Well, you actually have to have damages. Not just that it has to harm your reputation, it has to actually cause – the harm to the reputation has to cause damages. Like you hear some people being libel proof because their reputation is so in the crapper that you can’t really say anything about them that would lower – I mean you actually have to –

Nico Perrino: So, there needs to be some sort of recourse to make someone whole or –

Ronnie London: You have to show that you have a tangible harm, not just that I’m upset because people think less of me. I go through my whole life like that, I’m fine, I generally manage to be happy. I think we do kind of agree on this one. I don’t even think it necessarily belongs on the list. It’s pretty [inaudible – crosstalk] [00:36:28] protected.

Bob Corn-Revere: You kind of have to divide it down between civil libel and criminal libel. What you’re talking about is someone being able to sue because their reputation has been harmed by a falsehood. But this had its origin in criminal defamation against the crown. So, if you’re talking about making it a violation of criminal law, then you’re talking about a category that shouldn’t exist.

Nico Perrino: This is one of the –

Bob Corn-Revere: And largely it doesn’t.

Nico Perrino: Yeah. This was one of the early free speech controversies in the American colonies, the famous trial of John Peter Zenger, who I believe was a New York publisher who criticized the colonial governor of New York, and actually said true things about the governor but they were unsavory.

Bob Corn-Revere: And the doctrine at the time was if it’s true, it is all the more damaging to the crown.

Nico Perrino: This is the doctrine of seditious libel.

Bob Corn-Revere: Exactly.

Nico Perrino: There was actually a jury nullification in that case to –

Bob Corn-Revere: We have come a long way.

Nico Perrino: – prevent the conviction of John Peter Zenger. This was actually my first introduction to free speech because my fifth-grade class put on a play of the trial of John Peter Zenger. So, you come full circle here. So, Ronnie, what you’re saying is that this is one that could be on the list of exceptions to the first amendment that you can get on board with?

Ronnie London: Well, if I get my way, then it becomes a list of one, so there’s no more list. It’s just defamation sitting out there by itself. So, I’m not unreasonable.

Nico Perrino: All right, defamation. Let’s talk here about a use case, the Dominion Voting Systems v. Fox News case in which Dominion Voting Systems argued that Fox News defamed Dominion by broadcasting numerous false claims about the company’s voting technology. It resulted, I believe, in the largest ever settlement in one of these cases. Just because you settle a case doesn’t mean you’re necessarily admitting guilt but –

Ronnie London: You do at that price tag.

Bob Corn-Revere: When you’re shelling out something on the order of $780 million, that kind of speaks for itself. But again, no culpability was acknowledged.

Nico Perrino: So, Bob, are you on board with defamation as a categorical exception to free speech?

Bob Corn-Revere: I am in that if private parties and – it can extend to public officials, but generally if private parties feel they have been defamed by knowingly false statements and actually have been harmed, then the law of defamation gives them recourse. Now what I will say is that this is one of the primary examples of where having categories and having categorical exceptions has resulted in a ratcheting down of the test – or ratcheting up of the test. So, that to find something to be defamatory, particularly against public officials, and then by extension later, public figures, it has required a very, very high level of proof, the actual malice standard that you described, before you can find someone responsible for those damages.

The Dominion Voting case that you mentioned is one which I think shows that New York Times v. Sullivan works. It required a heavy level of proof that was being developed for the trial and never did go to trial, to demonstrate that the reports, the allegations were knowingly false. There has been a lot of debate in recent years about whether or not New York Times v. Sullivan should be relaxed. I think the Dominion Voting case is sort of Exhibit A for saying that the New York Times standard is working.

Nico Perrino: But just because we believe something should be a categorical exception to free speech, the contours of that category are important. Because England, for example, has a different standard for defamation than the United States does, which allows for plaintiffs to bring many more cases and win.

Bob Corn-Revere: It’s funny you should mention England because I think comparing European law and US law is a good example of why the categorical approach has been more effective than the approach used by Europe and also in England. Not just in defamation, but generally because they do have the European Convention of Rights that recognizes freedom of speech. But it doesn’t create freedom of speech as the presumption that all speech is protected. It says it’s protected, but along with other values and contains a number of exceptions. Article 10 and Article 17 of the European Convention sort of create this list of protections and exceptions that sometimes protect speech and sometimes don’t.

But here, where we have the presumption that speech is protected unless it falls into specific categories has overall given us much more protection.

Nico Perrino: So, obscenity, we agree it should be eliminated. Fighting words, gone, eliminate.

Bob Corn-Revere: I would suggest that fighting words is pretty much gone already.

Ronnie London: What’s the saying? Let fighting words die, kill it if you have to. I do think we need a definitive death stroke.

Bob Corn-Revere: I agree. And I think the Court made progress on that last term in Counterman v. Colorado where you have two of the opinions saying that there hasn’t been a conviction for 80 years.

Nico Perrino: Well, to all the Supreme Court justices who listen to this podcast, please take up a good fighting words case and eliminate that doctrine. That’s just me manifesting. I have no –

Ronnie London: We’re only speaking to future justices here, right? Harbor no illusions.

Nico Perrino: That’s right. So, eliminate fighting words, eliminate obscenity. We both are on board or for the categorical exception to the First Amendment that is defamation. Now let’s move on to the one that I think where there’ll be the most disagreement, incitement and true threats. So, incitement to imminent lawless action, this is not the mere advocacy of law breaking. This goes back to 1969’s Brandenburg v. Ohio case. Speech remains protected as long as it is not intended to and likely to provoke an immediate unlawful action. You don’t like that standard? Or you don’t like that category that uses that standard?

Ronnie London: There’s so many things I don’t like for so many reasons. This is where we start sliding into what I consider the categories where there are other legal doctrines that already adequately cover this without saying but if you meet this definition, we can do whatever we want to you if you engage in this speech. Incitement is one of them. I have two problems with incitement. One is, again, like fighting words, it puts the incentives in the wrong place. But beyond that, I also think that if you engage in speech that sufficiently contributes to lawless action, that you can said to be a conspirator or you can said to have aided and abetted the lawless action, then we already have doctrines that cover that.

I’d like to get rid of any unnecessary or surplusage regulations or speech doctrines that makes speech more fraught. And this strikes me as one we could probably do without. Yes, you do need to be responsible for your own actions and not have a responsive. But he said, “Get him.”

Bob Corn-Revere: But therein you’ve just undermined your own argument. Because what you’re saying is we’re going to prosecute it not as speech but as something else. We’re prosecuting your conduct because what you said was really part in parcel of illegal conduct, and therefore we’re going to go after you for that. And that speech versus conduct dichotomy has been used over time to try and say, “Well, as long as we can call it conduct, we can do whatever we want to you.” The same argument that you’re making about unprotected categories.

When you talk about incitement specifically and you look at the way First Amendment law and doctrine has developed over the 20th century until now, having that category actually has resulted in more protection, starting with the clear and present danger test articulated in the World War I espionage act cases where basically you can the fire in the crowded thing –

Nico Perrino: Falsely.

Bob Corn-Revere: Yeah, exactly. That if there was any risk that there was a bad tendency to what you said that it could lead to bad things, then you could prosecute it for incitement until Brandenberg, where you then have the Court refining that test and constitutionalizing the area of incitement and saying that you had to have both the intent to cause immediate lawless action and the probability that your words were going to cause that immediate lawless action. You have the same thing happening in this area as the others. Tightening the doctrine has led to greater levels of speech protection. You don’t get more protection if you follow Ronnie’s suggestion of simply treating it as conduct.

Ronnie London: Well, then tell me then, what is the gap between being able to be prosecuted for incitement and simply being an aider and abettor or conspirator?

Bob Corn-Revere: Well, we’ve already seen how slippery aiding and abetting can be. Here we have in some cases the government arguing that simply speaking about an illegal subject can be taken as aiding and abetting. So, again, I don’t buy that you get more protection by trying to –

Nico Perrino: But aren’t those also categories of accepted speech, Ronnie?

Ronnie London: Let’s lump in speech incident to criminal activity here because I think this discussion encompasses incitement and speech incidents and criminal conduct equally, don’t you think?

Bob Corn-Revere: Yeah.

Nico Perrino: Okay, well let’s lump them in then. So, you say we already have speech [inaudible] [00:47:14] criminal conduct. We already have conspiracy to commit a criminal act. So, we don’t need incitement and imminent lawless action. But those other categories also implicating speech and therefore we shouldn’t have those categories as well?

Ronnie London: It’s funny how no one refers to aiding and abetting and conspiracy as categories of unprotected speech isn’t it?

Nico Perrino: Well, I don’t know, they involve speech right?

Ronnie London: But again –

Nico Perrino: And no action has been taken yet. They’re just speaking about taking an action in the future.

Ronnie London: And that’s an important distinction, I think, because you can have – Now we’re kind of parsing into criminal law a fair bit, can you criminalize attempt? Is there at least one material step towards the actual conduct? I think that’s an important distinction –

Nico Perrino: So, the material step is the conduct?

Ronnie London: Right.

Nico Perrino: So, if you’re the terrorists who want to fly planes into the World Trade Center on 9/11 –

Bob Corn-Revere: When you buy a ticket.

Nico Perrino: It’s when you buy a ticket, that’s what you’re saying? So, the mere talking about it –

Bob Corn-Revere: [Inaudible – crosstalk] [00:48:15].

Ronnie London: I think the distance is likely to produce imminent lawless action and actually producing imminent lawless action. There are First Amendment lawyers, and we’ve had this debate, and Bob and I are on the same side of this one, I think, have had this debate about whether what happened January 6 is incitement. Now, at the end –

Bob Corn-Revere: What happened January 6?

Ronnie London: I don’t know, they did some remodeling in the – But here’s the thing, if incitement’s a thing, at the end of that speech, that’s either a prosecutable offense or not regardless of what happened. Even if everyone else would have kind of said, “Ugh, he’s really gone around the bend this time, let’s go home,” that would still arguably be incitement if it was likely to produce – you don’t get to look at it after the fact. You don’t get to do Monday morning quarterbacking when it comes to incitement. Maybe that’s the distance between aiding and abetting and conspiracy is that you have to have at least one overt act towards the crime before the speaker can be punished. And maybe I’m just more comfortable with that than it being based on a predictive standard.

Bob Corn-Revere: Maybe so. But again, let’s take the January 6 speech on the Ellipse as the example. Here you have the outgoing president speaking to supporters, not worrying about the magnetometers that they were bringing in as potential weapons. But making a number of some direct statements, some ambiguous statements. And the questions was whether or not what he said to the crowd on that date could constitute incitement to attack the Capitol. I’ve seen seasoned First Amendment lawyers reach opposite conclusions on that proposition. Was former President Trump’s speech incitement or was it not?

Nico Perrino: But is that because they know what happened after the speech? Because if you look at the speech he’s saying fight, fight, fight. The whole context, you might say stop the steal, what does it mean to actually stop the steal? But then he does say peacefully march, right?

Bob Corn-Revere: There are all of those factors to consider, that’s right.

Ronnie London: And they’re special people, yes.

Bob Corn-Revere: The first question you asked was whether or not this was intended to cause imminent lawless action. There’s no way to really know what was in his mind at the time, and that is difficult. But you have to look at the surrounding circumstances to be able to make that determination.

Nico Perrino: But what I’m saying is –

Bob Corn-Revere: But the second question is whether or not it was likely to produce imminent lawless action, which means just what it says, immediately. So, because of some of the weasel words that were used, because of the fact that it wasn’t an imminent response there was time for people, if they had been so inclined, to think about things and to cool down in the time it took them to get from the Ellipse to the Capitol. The question is whether or not the words on their own were enough to be a crime. I think not.

Ronnie London: Well, here’s the thing, I agree with that, but I put much more – I think I probably put all my eggs in this particular basket, on the fact that it’s a 20-minute walk from where the speech happened to where the ensuing criminal activity happened. And I think at that point you simply have to be responsible for your own actions and not blame them on a speaker. Now, had the same speech happened on the steps of Congress instead of where it did, I think you might get a different outcome on incitement.

Bob Corn-Revere: You might, you might.

Nico Perrino: So, Ronnie you were saying earlier in the context of fighting words that there is something that stands between the words that are uttered and the anticipated or belief to be response, which is the mind of the listener, the individual agency of the listener to determine how they are going to respond. And that through categories like fighting words, through categories like incitement, you remove the agency from the listener. And the burden in these cases should always be placed on the speaker. So, as a categorical exception, incitement should go away because you’re insight – the word incitement presumes there is someone to insight and that person loses agency if there’s this categorical exception that says –

Ronnie London: Well, it’s not that they lose agency because of the categorical exception. The logical underpinnings of treating it as a categorical exception is that the speech is enough to remove the agency of the listener to make them act as they might not have acted otherwise. Again, I said this before, I think where I ultimately come out is if the issue is that incitement can happen even if the ensuing unlawful activity never occurs, and that’s why I have a problem with that as an unprotected category. Maybe all I’m really saying is once you have an overt act toward a criminal conduct, then you simply treat it as aiding and abetting and conspiracy and move on and we eliminate this as an unprotected category.

Nico Perrino: So, where do we end up on this one because I do want to move on, and I don’t want to linger here too much.

Bob Corn-Revere: Well, I’m not sure there’s all that much distance between what happens as a practical matter. And the only real difference is really sort of splitting the doctrinal hairs about whether or not this should be expressed as a speech category or as an element of some other crime.

Ronnie London: So, you want to go to true threat?

Nico Perrino: Yeah, I do want to ask about true threat because we were talking about the agency question, that you have this listener that is going to respond in this certain way. True threat, it’s not as much about the listener. Or is it?

Bob Corn-Revere: Well, it is in part because the words have to be reasonably interpreted to be threatening. That’s sort of the threshold. And then the question is whether or not the speaker was acting in reckless disregard of whether or not his words would be perceived, or her words would be perceived as a threat.

Nico Perrino: So, one of the big cases in this respect is Virginia v. Black, which is a case involving a Virginia statute. There was a group of Klansmen and women who burned a cross on private property. That burning of the cross was prima facia evidence, according to the statute, of intimidation or true threat.

Bob Corn-Revere: Two things are important to take away from this. One is the statute was essentially upheld, that you can prohibit burning a cross with the intent to intimidate. The problem with the statute, though, was that it took burning the cross itself as prima facia evidence.

Nico Perrino: So, you didn’t even need to look at intent?

Bob Corn-Revere: That’s right. And the Court said no, you really can’t do that. That you actually have to show some intent, which is something that the Supreme Court last term in Counterman v. Colorado underscored in holding that you really do have to have criminal culpability in showing intent to have this bad result.

Nico Perrino: So, Elena Kagan in that case wrote that the prosecutors in a case have to show that the defendant had some subjective understanding of the threatening nature of his statement. And the statement shows that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.

Bob Corn-Revere: That’s right, and drew heavily on New York Times v. Sullivan and what reckless disregard means in setting a high bar for what kind of recklessness is required.

Nico Perrino: So, Ronnie, presumably you wouldn’t say that calling in to a school and saying there’s a bomb in the school should be protected speech, right?

Ronnie London: No.

Nico Perrino: Okay, so you’d have a categorical exception for true threats.

Ronnie London: And again, the idea here isn’t to say that everything that falls into these definitional categories should be protected and it’s okay. That’s really not the point here. Here’s a quote, “Words do not make the actor liable unless together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact with this person.” Sounds like true threat more or less, right?

Bob Corn-Revere: What are you reading from?

Ronnie London: This is a restatement of torts with respect to what assault is. Again, this is kind of another area where –

Nico Perrino: Oh, so what you’re saying is that a true threat is just another way of describing an assault.

Ronnie London: Either it’s an assault or it’s not.

Nico Perrino: But here are we just getting into semantics?

Bob Corn-Revere: But now you’re bleeding into fighting words because fighting words are face-to-face contact whereas threats can be from a distance.

Ronnie London: And if you have no practical ability to carry out the threat, it doesn’t count, does it?

Bob Corn-Revere: Well, again, it has to be on an objective level something that is reasonably understood would be a threat. So, I guess the answer to your question is yes, but again, that just shows that there are both subjective and objective elements to demonstrating whether there was a threat.

Ronnie London: And I will say, and this should be obvious by now, different of these categories offend me on different levels and to different degrees. Like you say, I’m not advocating that you can call a bomb threat into a school. And it probably doesn’t fit the definition of assault, but nevertheless should be punishable.

Bob Corn-Revere: No, but it would be punishable as a true threat.

Ronnie London: Yes.

Nico Perrino: There are categories of speech that we did not talk about here that might fall as a category unprotected by the First Amendment. I want to ask about two that people often think are categorical exceptions to free speech that aren’t. Hate speech and false speech, you could call it fake news or misinformation, those are categories of speech that the Supreme Court has said are protected by the First Amendment generally, right?

Ronnie London: Yeah. Let me just say that if we didn’t have this thing called categories of unprotected speech, there wouldn’t be any misapprehension that there are some other things that are also categories of unprotected speech. But yeah –

Nico Perrino: But are you saying that people still wouldn’t think that –

Ronnie London: Yeah, they would. I know, come on. And hate speech isn’t a thing. Hate speech is in the ear of the beholder. It is by definition a viewpoint-based perspective that goes to the subjective opinion of the person who’s calling something hate speech. You said it, there’s not a lot more to say. The Supreme Court has been very clear that speech that is hateful that doesn’t fall into one of these categories is protected speech.

Bob Corn-Revere: That’s right. It’s so often said that hate speech is not speech that’s protected by the First Amendment in just sort of general discourse. And as Ronnie just pointed out, that is completely wrong. But it is the same way that people will say pornography is not protected because they mix it up with obscenity. Pornography isn’t a legal category. It’s not a thing in the world of law. It is simply a pejorative description of sexually oriented adult entertainment. Whereas, if you are getting to the legal definition of obscenity, then you have the three-part structure from Miller that we were talking about earlier. There’s no corresponding category for hate speech. There’s no corresponding definition that will allow you to distinguish one type of unpleasant or hateful speech from anything else.

And that’s one of the things that prevents that from being an unprotected category and one of the reasons why the court numerous times has said that the First Amendment does protect that kind of speech.

Nico Perrino: And when I say hate speech and false speech are generally protected by the First Amendment, you could have false speech that falls under defamation, too, right if it meets the standard –

Ronnie London: Or false advertising.

Nico Perrino: That could be fraud.

Bob Corn-Revere: In the brief that Ronnie and I filed in the case US v. Alvarez, which said that lying is protected under the First Amendment, one of the things we made clear that –

Nico Perrino: This is a person who said that they had the medal of –

Bob Corn-Revere: There was a federal statute called the Stolen Valor Act that prohibited people falsely claiming they had military honors. This guy was an inveterate liar, and he got prosecuted under the law. The question is whether or not telling a lie in and of itself is unprotected by the First Amendment. The argument that we made in our brief to the court was that where there are exceptions that allow the prosecution of false speech, it is always falsity plus, falsity plus something else. So, fraud for example, where you are cheating someone out of their money by telling them lies, that is something you can prosecute. Or in the case of defamation where you’re knowingly using a falsehood that damages someone, then they can collect damages if they go to court and win.

But simply telling lies because you’re an asshole doesn’t qualify as something that the government can prosecute.

Ronnie London: Unless you’ve raised your hand and put your other hand on a stack of books and promised that you wouldn’t, then it is punishable.

Nico Perrino: So, perjury, for example.

Ronnie London: Exactly.

Bob Corn-Revere: Well, there’s that.

Nico Perrino: You can perjure yourself. The Supreme Court is probably not going to eliminate categorical exceptions to the First Amendment, correct? So, is this just kind of a fun –

Bob Corn-Revere: We should have had drinks over this.

Ronnie London: Yes, we should have. It’s Friday afternoon for God’s sakes.

Nico Perrino: But you often hear people accuse free speech advocates of being First Amendment absolutists. If you look at the conversation we’re having here, I don’t know that I actually know of any First Amendment absolutists who reads, “Congress shall make no law abridging freedom of speech,” and interprets that to mean that any speech, even perjury, even fraud, even criminal conspiracy should be protected because it is just speech.

Bob Corn-Revere: I’ve been doing this for over 40 years, and I’ve never met a First Amendment absolutist. But it’s a label that people who want to undermine free speech protections often make. They will simply call someone an absolutist and by that think that they are simply waiving them away or waiving their arguments away. But, no, I think we all agree the First Amendment is not an absolute. And the question is what analytical test you use to get to that conclusion.

Ronnie London: At the same time, I would say that in addition to my carving away this as a tool in the government’s toolbox, my net net is that I want to believe, and I have no empirical evidence for this or haven’t done any research on this at all, as I said at the top, but I think that the net net that I’m aiming for is for there to be more speech that winds up getting protected than currently. That’s the aim. I’m not pushing towards zero.

Nico Perrino: That’s kind of the work here at FIRE. Of course, we want to keep the starch in the First Amendment standards, but there are also areas of the law that we think could be improved, that there’s more speech that should be protected under court doctrine than is. That’s the work that we continue to do here day after day.

Bob Corn-Revere: And the point that we all agree on.

Nico Perrino: Yes. I think that’s a good place to leave it. Bob, Ronnie, thanks again for coming on the show.

Ronnie London: Thanks.

Bob Corn-Revere: Thanks, Nico.

Nico Perrino: That was FIRE Chief Counsel Bob Corn-Revere and FIRE General Counsel Ronnie London. I am Nico Perrino, and this podcast is recorded and edited by a rotating roster of my FIRE colleagues including Aaron Reese and Chris Maltby and co-produced by my colleague who is in here in the studio with us, Sam Li. To learn more about So to Speak, you can subscribe to our YouTube channel or our Substack page, both of which feature video versions of this conversation. And we’re also on X and Facebook.

Please, if you have feedback on this show or have a thought about categorical exceptions to free speech, you can email us at sotospeak@thefire.org. We’d love to hear from you. Again, that email is sotospeak@thefire.org. And if you enjoyed this episode, please leave us a review, Apple Podcast, Google Play, Spotify, wherever you get your podcasts. Reviews help us attract new listeners to the show. And until next time, thanks again for listening.

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Duration: 66 minutes