Limits of Freedom of Speech

Does the First Amendment mean anyone can say anything at any time? No.
The Supreme Court has rejected an interpretation of speech without limits.

Because the First Amendment has such strong language, we begin with the presumption that speech is protected. Over the years, the courts have decided that a few other public interests — for example, national security, justice or personal safety — override freedom of speech. There are no simple rules for determining when speech should be limited, but there are some general tests that help.

Clear and Present Danger
Will this act of speech create a dangerous situation? The First Amendment does not protect statements that are uttered to provoke violence or incite illegal action.

Justice Holmes, speaking for the unanimous Supreme Court, stated, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Fighting Words
Was something said face-to-face that would incite immediate violence?

In Chaplinsky v. New Hampshire, the Supreme Court stated that the “English language has a number of words and expressions which by general consent [are] ‘fighting words’ when said without a disarming smile. … Such words, as ordinary men know, are likely to cause a fight.” The court determined that the New Hampshire statute in question “did no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace by the speaker — including ‘classical fighting words,’ words in current use less ‘classical’ but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.” Jurisdictions may write statutes to punish verbal acts if the statutes are “carefully drawn so as not unduly to impair liberty of expression.”

Also see What is the Fighting Words Doctrine?

Libel and Slander
Was the statement false, or put in a context that makes true statements misleading? You do not have a constitutional right to tell lies that damage or defame the reputation of a person or organization.

Obscenity
In June 1973 in Miller v. California, the Supreme Court held in a 5-to-4 decision that obscene materials do not enjoy First Amendment protection.

In Miller v. California (1973), the court refined the definition of “obscenity” established in Roth v. United States (1957). It also rejected the “utterly without redeeming social value” test of Memoirs v. Massachusetts.

In the three-part Miller test, three questions must receive affirmative responses for material to be considered “obscene”:

  1. Would the average person, applying the contemporary community standards, viewing the work as a whole, find the work appeals to the prurient interest?
  2. Does the work depict or describe sexual conduct in a patently offensive way?
  3. Does the work taken as a whole lack serious literary, artistic, political, or scientific value?

One must distinguish “obscene” material, speech not protected by the First Amendment, from “indecent” material, speech protected for adults but not for children. The Supreme Court also ruled that “higher standards” may be established to protect minors from exposure to indecent material over the airwaves. In FCC v. Pacifica Foundation  the court “recognized an interest in protecting minors from exposure to vulgar and offensive spoken language.”

Conflict with Other Legitimate Social or Governmental Interests
Does the speech conflict with other compelling interests? For example, in times of war, there may be reasons to restrict First Amendment rights because of conflicts with national security.

To ensure a fair trial without disclosure of prejudicial information before or during a trial, a judge may place a “gag” order on participants in the trial, including attorneys. Placing prior restraint upon the media usually is unconstitutional. In Nebraska Press Association v. Stuart (1976), the Supreme Court established three criteria that must be met before a judge can issue a gag order and restrain the media during a trial.

Time, Place, and Manner
These regulations of expression are content-neutral. A question to ask: Did the expression occur at a time or place, or did the speaker use a method of communicating, that interferes with a legitimate government interest? For example, distribution of information should not impede the flow of traffic or create excessive noise levels at certain times and in certain places.

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