Exceptions to Standard Free Speech Doctrine

Author:Charles D. Kelso; R. Randall Kelso
Profession:Professors of Law

§ 30.1 Content-Based Regulations of "Unprotected" Speech That Trigger No Further First Amendment Review, Except for the Prescription Against Viewpoint Discrimination. § 30.1.1 Advocacy of Illegal Conduct. § Classic Cases of Advocacy of Illegal Conduct. § Cases Involving True Threats. § Hate Crimes Legislation. § Hate Speech Legislation. § 30.1.2 Fighting Words. § 30.1.3 Obscene Speech. §... (see full summary)


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The Supreme Court has created a number of exceptions to standard free speech doctrine for certain categories of speech that do not receive full First Amendment protection. In some of these cases, such as fighting words, obscenity, indecency involving children, or certain advocacy of illegal conduct, discussed at § 30.1.1-30.1.4, the speech receives no First Amendment protection, except for the prescription against viewpoint discrimination that triggers strict scrutiny review, as discussed at § 30.1. For other kinds of speech, like defamatory speech or governmental regulation of the speech of government employees on matters of public concern, discussed at § 30.2, a version of rational review is applied. For regulations of broadcast radio or television, or regulations of commercial speech, discussed at § 30.3, a version of intermediate scrutiny is applied. In campaign finance cases, or speech regulating the choice and election of candidates, discussed at § 30.4, a version of strict scrutiny is applied.

Not surprisingly, these versions of rational review, intermediate scrutiny, and strict scrutiny track the different levels of scrutiny used in other cases involving individual rights. As discussed at § 7.2.1 text following n.42, there are basically seven different levels of scrutiny. These seven levels are minimum rational review, second-order rational review, third-order rational review, basic intermediate review, intermediate review with bite, loose strict scrutiny, and strict scrutiny.

§ 30 1 Content-Based Regulations of "Unprotected" Speech That Trigger No Further First Amendment Review, Except for the Prescription Against Viewpoint Discrimination

The Court has identified certain categories of speech that, as traditionally defined, are not protected by the First Amendment. The four basic categories of such speech involve some advocacy of illegal conduct, discussed at § 30.1.1; fighting words, discussed at § 30.1.2; obscenity, discussed at § 30.1.3; and indecency involving children, discussed at § 30.1.4. While libel was also historically viewed as an additional category of "unprotected" speech, libelous speech has been entitled to some First Amendment protection since New York Times Co. v. Sullivan in 1964, discussed at § In addition, false or unlawful statements made in the context of commercial speech are entitled to no First Amendment protection. Only truthful, lawful representations are provided First Amendment protection under the Central Hudson test for commercial speech, discussed at § 30.3.2.

The Court has sometimes stated that these categories of "unprotected" speech are not protected at all by the First Amendment. For example, in 1942, in Chaplinsky v. New Hampshire,1 a case involving fighting words, the Court noted, "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition 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."

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However, in 1992, that perspective was clarified in R.A.V. v. City of St. Paul.2 Speaking for a 6-3 Court, Justice Scalia said that such statements are not literally true:

What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content . . . - not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content.

Noting that content-based regulations are presumptively invalid, Justice Scalia said that this principle applied to impose upon even these kinds of proscribable speech a viewpoint discrimination limit. For example, he noted, "We recently acknowledged this distinction in [New York v. Ferber], where, in upholding New York's child pornography law, we expressly recognized that there was no 'question here of censoring a particular literary theme.'" Similarly, Scalia noted, if this were not the rule "a city council could enact an ordinance prohibiting only those legally obscene works that contain criticism of the city government or, indeed, that do not include endorsement of the city government. Such a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds with common sense and with our jurisprudence as well."3 Thus, even for these categories of speech, viewpoint discrimination triggers strict scrutiny review, as discussed at §

Under this doctrine, there are three situations in which content discriminations can be made. The first is where the discrimination is based entirely on the same reason that the category of speech is proscribable, that is, the regulation would be a subject-matter regulation, not an example of viewpoint discrimination. For example, the law could bar the most lascivious displays of sexual activity, but could not prohibit only obscenity which includes offensive political messages.4 The second exception is where the defined subclass of proscribable speech is associated with particular "secondary effects" of the speech so that the regulation is justified on a content-neutral basis without reference to the content of the speech. Justice Scalia noted that a case of this kind is Renton v. Playtime Theatres, Inc, discussed at § n.135, where adult movie theaters could be zoned because of their secondary effects on the surrounding neighborhood.5 The third exception occurs where the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot. As an example, Justice Scalia said, "We could not think of any First Amendment interest that would stand in the way of a State's prohibiting only those obscene motion pictures with blue-eyed actresses."6 Of course, such a law, if not rationally related to any legitimate interest, would probably violate the Equal Protection Clause or Due Process Clause as being "irrational," "arbitrary," or "capricious" under standard minimum rational review.

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In short, these three situations all involve non-viewpoint based discrimination. The Court made clear in R.A.V. that viewpoint discrimination will trigger strict scrutiny even with respect to "unprotected" speech, as it did in R.A.V., where the law, discussed at § n.41, was a version of "hate crimes" legislation proscribing only fighting words that involved messages of racial, gender, or religious intolerance, but did not ban fighting words against racial, gender, or religious intolerance. In the vast majority of cases involving proscribable speech, no such viewpoint discrimination has appeared, and R.A.V. currently stands as a rather lonely beacon.

§ 30 1.1 Advocacy of Illegal Conduct

There are four kinds of cases that fall generally under the category of speech involving the advocacy of illegal conduct. The classic case involves advocacy by a speaker to a group at a demonstration, or the distribution of leaflets or other literature, advocating lawless action, discussed at § A second kind of case involves advocacy where the speaker indicates a possible intent for the speaker to commit violence...

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