Types of speech that are not protected by the First Amendment include the following:
Incitement to Imminent Lawless Action
The First Amendment does not protect speech that incites people to break the law, including to commit acts of violence. In Brandenburg v. Ohio, the Supreme Court ruled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In Hess v. Indiana, the Supreme Court clarified what constitutes unprotected incitement speech noting that the speech must be directed at a specific person or group and there must be evidence, or a rational inference from the import of the language, that the speaker’s words were intended to produce, and likely to produce, imminent disorder.
The Supreme Court first identified the so-called “fighting-words” exception to the First Amendment in 1942. Over the ensuing decades the Court has limited the fighting words doctrine. Generally, unprotected fights words are words that by their very utterance inflict injury and tend to incite an immediate breach of the peace. There is no list of “fighting words” instead, courts examine the totality of the circumstances and decline to protect clear and directed insults intended to start a fight or lawlessness. Speech can still be protected if it is angry or profane and laws prohibiting fighting words must be very narrowly tailored.
In its most recent case examining “true threats”, the Supreme Court defined unprotected true threats to encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence against a particular individual or group of individuals. The speaker need not actually intend to carry out the threat but the speaker must have spoken with “the intent of placing the victim in fear of bodily harm or death.” In United States v. Dinwiddie, the federal Eighth Circuit Court of Appeals applied a five-factor test to determine whether speech constitutes a true threat, including: (i) the reaction of the recipient of the threat and of other listeners; (ii) whether the threat was conditional; (iii) whether the threat was communicated directly to its victim; (iv) whether the maker of the threat had made similar statements to the victim in the past; and (v) whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.
The Supreme Court has struggled to define unprotected “obscenity” for decades. In Jacobellis v. Ohio the Supreme Court noted that in attempting to identify obscenity, the Court “was faced with the task of trying to define what may be indefinable.” After attempting to approach the issue on a case-by-case basis, the Supreme Court established “basic guidelines” in Miller v. California. Speech or materials may be deemed obscene (and therefore unprotected) if the speech meets the following (extremely high) threshold: It (1) appeals to the “prurient” interest in sex (defined as a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex), (2) is patently offensive by community standards / applicable state law and (3) lacks literary, artistic, political, or scientific value.
An intentional and false statement about an individual that is publicly communicated in written (called “libel”) or spoken (called “slander”) form, causing injury to the individual. To be defamatory, a statement must be an assertion of fact (rather than mere opinion) and capable of being proven false. In addition to being false, the statement, to be defamatory, must identify its victim by naming or reasonably implicating the person allegedly defamed. The Supreme Court has strove to balance the interests of a free press with the privacy and dignity of others. As a person becomes more well-known or takes official positions in the government, the Court has afforded them less protections.
The Supreme Court in Davis v. Monroe County defined unprotected harassment as unwelcome conduct based on an individual’s protected status or perceived protected status that is sufficiently severe, persistent, and pervasive to unreasonably interfere with that individual’s educational (or employment) environment, thereby creating an environment that a reasonable person in similar circumstances and with similar identities would find hostile, intimidating, or abusive. In determining whether an environment is sufficiently hostile, intimidating, or abusive to constitute prohibited harassment, courts generally consider the totality of the circumstances including the frequency of the discriminatory conduct, the severity of the conduct, whether the conduct is physically threatening and whether the conduct unreasonably interferes with an individual’s educational/employment performance. Typically, courts find a hostile environment is created when a series of serious incidents based on prohibited animus occurs within a defined period of time and no remedial action is taken to prevent or remediate the conduct. The more severe the conduct, the less need there is to show a repetitive series of incidents to show a hostile environment, particularly if the conduct is physical.
Material and Substantial Disruption
In Tinker v. Des Moines Independent Community School District, the Supreme Court recognized that conduct that creates or reasonably threatens to create a material and substantial disruption to the functioning of a school is not protected under the First Amendment. Courts have applied this standard on a case-by-case basis closely analyzing the specific context of the speech.
Historically, the Supreme Court has narrowly defined speech that is not protected under the First Amendment, thereby limiting the authority of the government and public officials to prohibit or prosecute speech, even if it is unpopular or deeply offends many people.
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