Unprotected Speech Synopsis

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”  —Texas v. Johnson (1989)

FIRE advocates for robust free speech rights for all — but certain narrowly defined types of expression do not receive First Amendment protection. 

The categorical exceptions to the First Amendment are few, narrow, and carefully defined. To protect freedom of expression, they must remain that way. But they do exist, each for good reason. And as campuses grapple with students and faculty expressing their free speech rights, it’s useful to revisit the boundaries between protected expression and actionable misconduct.

Below, we detail categories of speech that fall outside of constitutional protections. 

Categories of Unprotected Speech

Incitement

Incitement — speech that is both “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” — is unprotected by the First Amendment. 

The standard comes from the Supreme Court’s 1969 decision in Brandenburg v. Ohio, a First Amendment challenge to the arrest of Ku Klux Klan members under an Ohio criminal syndicalism law. Journalists captured footage of the armed Klansmen using slurs against black and Jewish people. The Klansmen stated there “might have to be some revengeance taken” against government officials and announced a march on Congress on the Fourth of July. The Court struck down the Ohio law because the statute “purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action."

As with true threats and intimidation, determining whether speech constitutes incitement requires careful consideration of contextual circumstances. Mere advocacy of lawbreaking or violence remains protected speech as long as it is not intended to and likely to provoke immediate unlawful action.

True Threats

In Virginia v. Black (2003), the Supreme Court defined true threats as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” 

Importantly, the speaker does not need to actually intend to engage in violence for the government to punish threats or intimidation. As the Supreme Court clarified earlier this year in Counterman v. Colorado, the speaker crosses beyond the First Amendment’s protection when he knows of or “consciously disregard[s] a substantial risk that his communications would be viewed as threatening violence.” 

That being said, true threats are distinguishable from heated rhetoric. For example, the Court held in Watts v. United States (1969) that the First Amendment protected a man’s statement — after being drafted to serve in the Vietnam War — that “[i]f they ever make me carry a rifle the first man I want to get in my sights is L. B. J.,” as the statement was not a true expression of intent to kill the president.

Fighting Words

Fighting words are those that, by the very act of being spoken, tend to incite the individual to whom they are addressed to respond violently and to do so immediately, with no time to think things over. The fighting words category is an exceedingly limited classification of speech, encompassing only face-to-face communications that would obviously provoke an immediate and violent reaction from the average listener.

Obscenity

In Miller v. California (1973), the Supreme Court outlined a three-prong standard that material must meet in order to be considered legally obscene:

1. whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the “prurient interest” (an inordinate interest in sex);
2. whether the work depicts or describes, in a patently offensive way, sexual conduct;
3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Note: This third prong is considered an “objective” standard and is judged by reference to national rather than community standards.)

If all three prongs are met, the material enjoys virtually no First Amendment protection in the jurisdiction where it is adjudicated obscene, and the government may regulate its transmission, communication, or sale. 

Defamation

The First Amendment protects false speech, with very limited exceptions, including defamation and fraud. Defamation is a false statement of fact that (1) is communicated to a third party; (2) is made with the requisite guilty state of mind; and (3) harms an individual’s reputation. To be defamatory, a statement must be an assertion of fact (rather than mere opinion or rhetorical hyperbole) and capable of being proven false. As to state of mind, if the person allegedly defamed is a public figure, he or she must prove “actual malice” — namely, that the speaker made the statement either with knowledge of its falsity or with reckless disregard for the truth. A non-public figure need only prove that the speaker was negligent in making the false statement.

Fraud and Perjury

While, again, the First Amendment makes no categorical exception for false or misleading speech, certain types of fraudulent statements fall outside its protection. The government generally can impose liability for false advertising or on speakers who knowingly make factual misrepresentations to obtain money or some other material benefit (such as employment). Prohibitions on perjury — knowingly giving false testimony under oath — also are constitutional.

Speech Integral to Criminal Conduct

In Giboney v. Empire Storage & Ice Co. (1949), the Supreme Court held the First Amendment affords no protection to “speech or writing used as an integral part of conduct in violation of a valid criminal statute.” A robber’s demand at gunpoint that you hand over your money is not protected speech. Nor is extortion, criminal conspiracy, or solicitation to commit a specific crime. Abstract advocacy of lawbreaking remains protected speech. 

Protected Speech

Some readers may wonder why “hate speech” and harassment are not in the list of categories of unprotected speech. 

Hate Speech

Contrary to popular misconception, there is no First Amendment exception for so-called hate speech. The First Amendment fully protects speech that is unpopular or that some may find downright offensive. 

As FIRE has explained many times before, speech by adults as free citizens does not lose First Amendment protection because it is considered hateful. This is because hate speech in and of itself is protected speech, particularly when spoken by adults on their own time.

The Supreme Court has held the First Amendment allows you to wear a jacket that says “Fuck the Draft” in a public building (Cohen v. California — 1971), protest a soldier’s funeral with a sign that says “Thank God for Dead Soldiers” (Snyder v. Phelps — 2011), burn the American flag in protest (Texas v. Johnson — 1989) and United States v. Eichman — 1990), and give a racially charged speech to a restless crowd (Terminiello v. Chicago — 1949).

In Texas v. Johnson (1989), the Supreme Court stated the general rule regarding protected speech when it held the “government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable.” Federal courts have consistently followed this holding when applying the First Amendment.

Harassment

There is also no general First Amendment exception for “harassment,” and courts have struck down anti-harassment regulations and laws for overbroad language reaching a substantial amount of protected speech. In the educational context, the Supreme Court held in Davis v. Monroe County Board of Education (1999) that student-on-student harassment consists only of unwelcome, discriminatory conduct (which may include expression) that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” By definition, this includes only extreme and usually repetitive behavior — behavior so serious that it would prevent a reasonable person from receiving his or her education.

The government may also prohibit harassment, properly defined, in the workplace. This includes quid pro quo harassment — where a supervisor conditions continued employment or job benefits on sexual favors — and hostile work environment harassment based on race, sex, or another protected characteristic. The latter arises when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider hostile, abusive, or intimidating.