Note: This is an educational course, not legal advice.
Content-based laws usually face strict scrutiny, but a few narrow categories of speech have long been outside the First Amendment's protection, or get far less of it. The list is short and the Court keeps it short.
| Category | Leading case | The test, in brief |
|---|---|---|
| Incitement | Brandenburg v. Ohio (1969) | directed to imminent lawless action and likely to produce it |
| True threats | Virginia v. Black (2003) | statements in which the speaker means to communicate a serious expression of an intent to commit unlawful violence against a particular person or group; crude political exaggeration is not enough (Watts v. United States (1969)) |
| Fighting words | Chaplinsky v. New Hampshire (1942) | face-to-face personal insults likely to provoke an immediate violent reaction; read very narrowly today |
| Obscenity | Miller v. California (1973) | a three-part test: by contemporary community standards the work as a whole appeals to the prurient interest; it describes sexual conduct defined by state law in a patently offensive way; and it lacks serious literary, artistic, political or scientific value |
| Defamation | New York Times Co. v. Sullivan (1964) | false statements of fact that harm reputation, with constitutional limits (next topics) |
| Fraud, speech integral to crime | many cases | false statements to get money; speech that is part of a criminal act |
Why it works
What is not on the list matters as much. In United States v. Stevens (2010) the government argued that depictions of animal cruelty could be banned by weighing their value against their harm. The Court refused: the First Amendment does not allow new categories by "ad hoc balancing," only historically recognized ones. It also declined to make new categories for violent video games sold to minors (Brown v. Entertainment Merchants Association, 2011) and for lies about military medals (United States v. Alvarez, 2012). In Snyder v. Phelps (2011) protesters on public land near a military funeral could not be held liable for emotional distress: their signs were offensive to many, but addressed public matters. And in R.A.V. v. City of St. Paul (1992) the Court held that even within an unprotected category, a city may not single out only the fighting words that address disfavored topics.
Key idea
Unprotected or less-protected categories: incitement, true threats (Virginia v. Black), fighting words, obscenity (Miller), defamation, fraud and speech integral to crime. The Court will not add new categories by balancing (Stevens). "Hate speech" is not a category.
Worked example: Threat or hyperbole?
At an outdoor political rally, a young man says that if he is ever made to carry a rifle, the first person he wants in his sights is a named national leader. The crowd laughs. Is this a true threat?
- A true threat is a serious expression of an intent to commit unlawful violence against a particular person (Virginia v. Black).
- In Watts v. United States (1969), the Court held a nearly identical remark about the President was crude political hyperbole: it was conditional, made at a political event, and the listeners laughed.
- Context decides: a private message to a neighbor promising to hurt her would be judged very differently.
Answer: No; on these facts it is political hyperbole, as in Watts.
Worked example: A new category?
A state bans the sale of video games with extreme violence to minors, arguing violent speech is a new unprotected category for children. Result?
- Violence has never been an unprotected category.
- Brown v. Entertainment Merchants Association (2011) refused to create one, following Stevens.
- As a content-based law, it faced strict scrutiny and failed.
Answer: Struck down.
Common mistake
Thinking "hate speech" is an unprotected category. The Court has not recognized it as one: in Matal v. Tam it said speech that demeans on the basis of race or religion is still protected. Such speech is unprotected only if it fits an existing category, such as true threats or incitement. Check: name the category before you call speech unprotected.