Believe it or not, the First Amendment does not protect all types of speech. That's because, over the years, the Supreme Court has recognized that as a society there are certain types of speech we want to limit. For example, speech that incites violence often loses First Amendment protection. Another similar type of speech is “fighting words," discussed below.
“Congress shall make no law…abridging the freedom of speech…"
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
In Chaplinsky v. New Hampshire,1 the Court unanimously sustained a conviction under a statute proscribing any offensive, derisive or annoying word addressed to any person in a public place under the state court's interpretation of the statute as being limited to fighting words—i.e., to words that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed. The statute was sustained as narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.2 The case is best known for Justice Murphy's famous dictum. It is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have 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.3
Chaplinsky still remains viable for the principle that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called 'fighting words,' those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke a violent reaction.4 But, in actuality, the Court has closely scrutinized statutes on vagueness and overbreadth grounds and set aside convictions as not being within the doctrine. Chaplinsky thus remains formally alive but of little vitality.5
On the obverse side, the hostile audience situation, the Court once sustained a conviction for disorderly conduct of one who refused police demands to cease speaking after his speech seemingly stirred numbers of his listeners to mutterings and threatened disorders.6 But this case has been significantly limited by cases that hold protected the peaceful expression of views that stirs people to anger because of the content of the expression, or perhaps because of the manner in which it is conveyed, and that breach of the peace and disorderly conduct statutes may not be used to curb such expression.
The cases are not clear as to what extent the police must go in protecting the speaker against hostile audience reaction or whether only actual disorder or a clear and present danger of disorder will entitle the authorities to terminate the speech or other expressive conduct.7 Nor, in the absence of incitement to illegal activity, may government punish mere expression or proscribe ideas,8 regardless of the trifling or annoying caliber of the expression.9
The Supreme Court has cited three reasons why threats of violence are outside the First Amendment: protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.10 In Watts v. United States, however, the Court held that only true threats are outside the First Amendment.11 The defendant in Watts, at a public rally at which he was expressing his opposition to the military draft, said, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J."12 He was convicted of violating a federal statute that prohibited any threat to take the life of or to inflict bodily harm upon the President of the United States. The Supreme Court reversed. Interpreting the statute with the commands of the First Amendment clearly in mind,13 it found that the defendant had not made a true 'threat,' but had indulged in mere political hyperbole.14
In NAACP v. Claiborne Hardware Co., white merchants in Claiborne County, Mississippi, sued the NAACP to recover losses caused by a boycott by black citizens of their businesses, and to enjoin future boycott activity.15 During the course of the boycott, NAACP Field Secretary Charles Evers had told an audience of black people that any 'uncle toms' who broke the boycott would 'have their necks broken' by their own people.16 The Court acknowledged that this language might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence.17 Yet, no violence had followed directly from Evers' speeches, and the Court found that Evers' emotionally charged rhetoric did not transcend the bounds of protected speech set forth in Brandenburg. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.18 Although it held that, under Brandenburg, Evers' speech did not constitute unprotected incitement of lawless action,19 the Court also cited Watts, thereby implying that Evers' speech also did not constitute a true threat.20
In Beauharnais v. Illinois,21 relying on dicta in past cases,22 the Court upheld a state group libel law that made it unlawful to defame a race or class of people. The defendant had been convicted under this statute after he had distributed a leaflet, part of which was in the form of a petition to his city government, taking a hard-line white supremacy position, and calling for action to keep African Americans out of white neighborhoods. Justice Frankfurter for the Court sustained the statute along with the following reasoning:
Libel of an individual, he established, was a common-law crime and was now made criminal by statute in every state in the Union. These laws raise no constitutional difficulty because libel is within that class of speech that is not protected by the First Amendment. If an utterance directed at an individual may be the object of criminal sanctions, then no good reason appears to deny a state the power to punish the same utterances when they are directed at a defined group, unless we can say that this is a willful and purposeless restriction unrelated to the peace and well-being of the State.23 The Justice then reviewed the history of racial strife in Illinois to conclude that the legislature could reasonably have feared substantial evils from unrestrained racial utterances. Nor did the Constitution require the state to accept a defense of truth, because historically a defendant had to show not only truth but publication with good motives and for justifiable ends.24 Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary to consider the issues behind the phrase 'clear and present danger.'25
Beauharnais has little continuing vitality as precedent. Its holding, premised in part on the categorical exclusion of defamatory statements from First Amendment protection, has been substantially undercut by subsequent developments, not the least of which are the Court's subjection of defamation law to First Amendment challenge and its ringing endorsement of uninhibited, robust, and wide-open debate on public issues in New York Times Co. v. Sullivan.26 In R.A.V. v. City of St. Paul, the Court, in an opinion by Justice Scalia, explained and qualified the categorical exclusions for defamation, obscenity, and fighting words. These categories of speech are not entirely invisible to the Constitution, even though they can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content.27 Content discrimination unrelated to that distinctively proscribable content, however, runs afoul of the First Amendment.28 Therefore, the city's bias-motivated crime ordinance, interpreted as banning the use of fighting words known to offend on the basis of race, color, creed, religion, or gender, but not on such other possible bases as political affiliation, union membership, or homosexuality was invalidated for its content discrimination. The First Amendment does not permit [the city] to impose special prohibitions on those speakers who express views on disfavored subjects.29
In Virginia v. Black, the Court held that its opinion in R.A.V. did not make it unconstitutional for a state to prohibit burning a cross with the intent of intimidating any person or group of persons.30 Such a prohibition does not discriminate on the basis of a defendant's beliefs: as a factual matter, it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities. The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages.31
Legislation intended to prevent the offense of individuals and groups of people has also been struck down as unconstitutional. For example, in Matal v. Tam, the Supreme Court considered a federal law prohibiting the registration of trademarks that may “disparage…or bring . . . into contempt or disrepute any persons, living or dead."32 In Tam, the Patent and Trademark Office rejected a trademark application for THE SLANTS for an Asian-American dance-rock band because it found the mark may be disparaging to Asian Americans.33 The Court held that the disparagement provision violates the Free Speech Clause as it offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.34 Two years later, the Court invalidated another statutory trademark restriction—one prohibiting the registration of immoral or scandalous marks—on similar grounds.35
Balancing Privacy Rights with Freedom of Speech and the Free Press
First Amendment Limits: Child Pornography
Freedom of Expression
1. 315 U.S. 568 (1942).
2. 315 U.S. at 573.
3. 315 U.S. at 571–72.
4. Cohen v. California, 403 U.S. 15, 20 (1971). Cohen's conviction for breach of the peace, occasioned by his appearance in public with an offensive expletive lettered on his jacket, was reversed, in part because the words were not a personal insult and there was no evidence of audience objection.
5. The cases hold that government may not punish profane, vulgar, or opprobrious words simply because they are offensive, but only if they are fighting words that have a direct tendency to cause acts of violence by the person to whom they are directed. Gooding v. Wilson, 405 U.S. 518 (1972); Hess v. Indiana, 414 U.S. 105 (1973); Lewis v. City of New Orleans, 415 U.S. 130 (1974); Lucas v. Arkansas, 416 U.S. 919 (1974); Kelly v. Ohio, 416 U.S. 923 (1974); Karlan v. City of Cincinnati, 416 U.S. 924 (1974); Rosen v. California, 416 U.S. 924 (1974); see also Eaton v. City of Tulsa, 416 U.S. 697 (1974).
6. Feiner v. New York, 340 U.S. 315 (1951). See also Milk Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 287 (1941), in which the Court held that a court could enjoin peaceful picketing because violence occurring at the same time against the businesses picketed could have created an atmosphere in which even peaceful, otherwise protected picketing could be illegally coercive. But compare NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
7. The principle actually predates Feiner. See Cantwell v. Connecticut, 310 U.S. 296 (1940); Terminiello v. Chicago, 337 U.S. 1 (1949). For subsequent application, see Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Brown v. Louisiana, 383 U.S. 131 (1966); Gregory v. City of Chicago, 394 U.S. 111 (1969); Bachellar v. Maryland, 397 U.S. 564 (1970). Significant is Justice Harlan's statement of the principle reflected by Feiner. Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 (1951). Cohen v. California, 403 U.S. 15, 20 (1971).
8. Cohen v. California, 403 U.S. 15 (1971); Bachellar v. Maryland, 397 U.S. 564 (1970); Street v. New York, 394 U.S. 576 (1969); Schacht v. United States, 398 U.S. 58 (1970); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959); Stromberg v. California, 283 U.S. 359 (1931).
11. 394 U.S. 705, 708 (1969) (per curiam).
12. 394 U.S. at 706.
13. 394 U.S. at 707.
14. 394 U.S. at 708. In Virginia v. Black, 538 U.S. 343, 359 (2003), the Court, citing Watts, upheld a statute that outlawed cross burnings done with the intent to intimidate. A cross burning done as a statement of ideology, a symbol of group solidarity, or in movies such as Mississippi Burning, however, would be protected speech. Id. at 365–366.
15. 458 U.S. 886 (1982). Claiborne is also discussed below under Public Issue Picketing and Parading.
16. 458 U.S. at 900, n.29. See id. at 902 for a similar remark by Evers.
17. 458 U.S. at 927.
18. 458 U.S. at 928.
20. Claiborne, 458 U.S. at 928 n.71.
21. 343 U.S. 250 (1952).
24. 343 U.S. at 265–66.
25. 343 U.S. at 266.
26. 376 U.S. 254 (1964). See also Collin v. Smith, 447 F. Supp. 676 (N.D. Ill.) (ordinances prohibiting distribution of materials containing racial slurs are unconstitutional), aff'd, 578 F.2d 1197 (7th Cir.), stay denied, 436 U.S. 953 (1978), cert. denied, 439 U.S. 916 (1978) (Justices Blackmun and Rehnquist dissenting on the basis that Court should review case that is in some tension with Beauharnais). But see New York v. Ferber, 458 U.S. 747, 763 (1982) (obliquely citing Beauharnais with approval).
27. 505 U.S. 377, 383 (1992).
28. 505 U.S. at 384.
29. Id. 505 U.S. at 391. On the other hand, the First Amendment permits enhancement of a criminal penalty based on the defendant's motive in selecting a victim of a particular race. Wisconsin v. Mitchell, 508 U.S. 476 (1993). The law has long recognized motive as a permissible element in sentencing, the Court noted. Id. at 485. It distinguished R.A.V. as involving a limitation on speech rather than conduct, and because the state might permissibly conclude that bias-inspired crimes inflict greater societal harm than do non-bias inspired crimes (e.g., they are more likely to provoke retaliatory crimes). Id. at 487–88. See generally Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 Sup. Ct. Rev. 1.
30. 538 U.S. 343 (2003). A plurality held, however, that a statute may not presume, from the fact that a defendant burned a cross, that he had an intent to intimidate. The state must prove that he did, as a burning cross is not always intended to intimidate, but may constitute a constitutionally protected expression of opinion. Id. at 365–66.
31. 538 U.S. at 362–63.
32. 582 U.S. ___, No. 15-1293, slip op. (2017).
33. Id. at 1.
34. Id. at 1–2.