Updated January 16, 2019
The First Amendment: Categories of Speech
The Free Speech Clause of the First Amendment prohibits
speech categories typically associated with two different
the government from “abridging the freedom of speech,”
tiers of scrutiny.
but does not define what that freedom entails. The Supreme
Court has long interpreted the Clause to protect against
Political and Ideological Speech
government regulation of certain core areas of “protected”
The Supreme Court has long considered political and
speech (including some forms of expressive conduct) while
ideological speech to be at the core of the First
giving the government greater leeway to regulate other
Amendment, including speech concerning “politics,
types of speech, including a handful of limited categories
nationalism, religion, or other matters of opinion.” W. Va.
that the Court has deemed largely “unprotected.” This
State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
In Focus provides a broad overview of the main categories
Political speech can take other forms beyond the written or
of protected and unprotected speech in First Amendment
spoken word, such as money, e.g., Buckley v. Valeo, 424
jurisprudence.
U.S. 1 (1976) (per curiam), or symbolic acts, e.g., Texas v.
Johnson, 491 U.S. 397 (1989). A government regulation
Introduction
that implicates political or ideological speech generally
The Supreme Court’s current approach to free speech is not
receives strict scrutiny in the courts, whereby the
entirely categorical. That is, just because a law implicates
government must show that the law is narrowly tailored to
protected speech does not mean that law automatically
achieve a compelling government interest.
violates the Free Speech Clause. Likewise, the First
Amendment may still provide grounds to challenge
Commercial Speech
government regulation of unprotected speech. As a
Commercial speech—generally, speech that merely
threshold matter, a court may have to consider whether a
proposes a commercial transaction or relates solely to the
law is directed at speech or conduct, and, if the latter,
speaker’s and the audience’s economic interests—has
whether that conduct is inherently expressive. A court may
historically received less First Amendment protection than
also ask whether a law imposes a valid time, place, or
political speech. For many years, courts deferred to
manner restriction, e.g., Hill v. Colorado, 530 U.S. 703
legislatures when it came to economic regulations that
(2000), or impermissibly regulates speech on the basis of its
impinged upon speech. However, the Court’s 1976 decision
content or the speaker’s viewpoint, e.g., Reed v. Town of
in Virginia State Board of Pharmacy v. Virginia Citizens
Gilbert, 135 S. Ct. 2218 (2015).
Consumer Council, Inc., 425 U.S. 748, launched a trend of
increased judicial scrutiny over laws implicating
Nevertheless, identifying the category of speech at issue
commercial speech.
(e.g., commercial speech, obscenity) is an important step in
determining what First Amendment standards, including
Today, commercial speech restrictions typically receive at
what level of judicial scrutiny, a court might apply to the
least an intermediate level of scrutiny if they are directed at
law. Regulations of protected speech generally receive strict
non-misleading speech concerning a lawful activity. Under
or intermediate scrutiny, which are high bars for the
a test set out in Central Hudson Gas & Electric Corp. v.
government to meet. In contrast, the government typically
Public Service Commission of New York, 447 U.S. 557
has more leeway to regulate unprotected speech. Thus, the
(1980), such laws are constitutional only if they directly
category of speech is an important factor to consider in
advance a substantial government interest and are not
evaluating Congress’s ability to legislate on a given subject.
broader than necessary to serve that interest. However, the
Roberts Court has appeared receptive to applying a
Protected Speech
heightened level of scrutiny to certain commercial
The Supreme Court has recognized that the First
regulations, such as those that single out commercial
Amendment’s protections extend to individual and
speakers for less favorable treatment based on the content
collective speech “in pursuit of a wide variety of political,
of their speech. See, e.g., Sorrell v. IMS Health Inc., 564
social, economic, educational, religious, and cultural ends.”
U.S. 552 (2011). In contrast, courts have sometimes applied
Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984).
a less stringent standard than intermediate scrutiny to laws
Accordingly, speech is generally protected under the First
that require the disclosure of factual, uncontroversial
Amendment unless it falls within one of the narrow
information. See Zauderer v. Office of Disciplinary
categories of unprotected speech discussed in the next
Counsel, 471 U.S. 626 (1985).
section. Whether the Court applies strict scrutiny or a lower
form of scrutiny, however, depends on the character and
Unprotected Speech
context of the speech. For comparative purposes, this
In general, content-based restrictions on speech—laws that
section discusses political speech and commercial speech,
“appl[y] to particular speech because of the topic discussed
or the idea or message expressed”—are presumptively
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The First Amendment: Categories of Speech
unconstitutional and subject to strict scrutiny. Reed, 135 S.
Fighting words. In 1942, the Supreme Court held that
Ct. at 2226-27. However, the Supreme Court has
the First Amendment does not protect “fighting
recognized limited categories of speech that the government
words”—those “likely to provoke the average person to
may regulate because of their content, as long as it does so
retaliation, and thereby cause a breach of the peace.”
evenhandedly. See R.A.V. v. St. Paul, 505 U.S. 377, 382-86
Chaplinsky v. New Hampshire, 315 U.S. 568, 574.
(1992). The Court generally identifies these categories as
However, the Court has since stated that “speech cannot
obscenity, defamation, fraud, incitement, fighting words,
be restricted simply because it is upsetting or arouses
true threats, speech integral to criminal conduct, and child
contempt.” Snyder v. Phelps, 562 U.S. 443, 458 (2011).
pornography. The contours of these categories have
And although the Court continues to cite “fighting
changed over time, with many having been significantly
words” as an example of speech that the government
narrowed by the Court. In addition, the Roberts Court has
may proscribe, it has not upheld a government action on
been disinclined to expand upon this list, declining to
the basis of that doctrine since Chaplinsky.
recognize, for example, violent entertainment or depictions
of animal cruelty as new categories of unprotected speech.
True threats. The First Amendment does not bar the
See Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786 (2011);
government from prohibiting some forms of
United States v. Stevens, 559 U.S. 460 (2010).
intimidation such as “true” threats. See Watts v. United
States, 394 U.S. 705, 708 (1969) (per curiam). True
Obscenity. In order for material to be obscene, and thus
threats—as distinguished from “political hyperbole”—
unprotected under the First Amendment, it must, on the
occur when the speaker “means to communicate a
whole, “appeal to the prurient interest in sex” (as judged
serious expression of an intent to commit an act of
by contemporary community standards), depict or
unlawful violence to a particular individual or group of
describe sexual conduct (as specifically defined by state
individuals.” Virginia v. Black, 538 U.S. 343, 359
law) in a patently offensive way, and lack “serious
(2003).
literary, artistic, political, or scientific value.” See Miller
v. California, 413 U.S. 15, 24 (1973).
Speech integral to criminal conduct. In general, the
First Amendment affords no protection to speech “used
Defamation. Although the Supreme Court has held that
as an integral part of conduct in violation of a valid
defamatory statements—false statements of fact about a
criminal statute.” Giboney v. Empire Storage & Ice Co.,
person—are not protected speech, the Court has also
336 U.S. 490, 498 (1949). The Court has cited this rule
recognized that the prospect of civil or criminal
as one reason the government may prohibit, for
penalties for making such statements might hamper free
example, conspiracy or solicitation to commit a crime,
speech. Accordingly, under certain circumstances, the
offers or requests to obtain illegal material, or
First Amendment requires a party alleging defamation to
impersonating a government officer. See United States
demonstrate that the speaker acted with a certain level of
v. Williams, 553 U.S. 285, 297-98 (2008); Alvarez, 567
intent (e.g., in cases where the statement concerns a
U.S. at 721.
public official or figure) or to prove certain injuries. See
Gertz v. Robert Welch, 418 U.S. 323 (1974); New York
Child pornography. The Supreme Court in New York
Times Co. v. Sullivan, 376 U.S. 254 (1964).
v. Ferber, 458 U.S. 747, 764 (1982), recognized child
pornography as a category of unprotected speech
Fraud. Recognizing that “some false statements are
separate from obscenity, in part because the advertising
inevitable if there is to be an open and vigorous
and sale of such materials is integral to the underlying
expression of views in public and private conversation,”
criminal conduct of their production. Under Ferber, a
the Supreme Court has rejected a categorical First
prohibition on such materials must “be limited to works
Amendment exception for false statements. United
that visually depict sexual conduct by children below a
States v. Alvarez, 567 U.S. 709, 718-19 (2012)
specified age,” and the “category of ‘sexual conduct’
(plurality opinion). Nevertheless, the Court has stated
proscribed must also be suitably limited and described.”
that false statements can form the basis for other
“legally cognizable harm[s]” such as defamation or
Additional Sources
fraud. See id. In general, the government may regulate
For additional authorities and resources on the categories of
fraudulent speech in order to prevent public or consumer
speech, see JESSE H. CHOPER ET AL., CONSTITUTIONAL
deception. See Illinois ex rel. Madigan v. Telemarketing
LAW: CASES, COMMENTS, AND QUESTIONS 788 (12th ed.
Assocs., 538 U.S. 600, 612 (2003). But, as with other
2015) (observing that although the unprotected categories
types of speech regulations, it may not enact overbroad
are often viewed as exceptions, many aspects of “human
or unduly burdensome “prophylactic” rules for this
communication remain[] untouched by the First
purpose. See Riley v. Nat’l Fed’n of the Blind, 487 U.S.
Amendment—contract law, the law of wills, prosecution
781, 798 (1988); Zauderer, 471 U.S. at 649.
for perjury and blackmail, and much else”); KATHLEEN M.
SULLIVAN & NOAH FELDMAN, CONSTITUTIONAL LAW 944-
Incitement. In Brandenburg v. Ohio, 395 U.S. 444,
46 (19th ed. 2016) (discussing the roles of categorization
447-48 (1969), the Supreme Court held that the First
and balancing in the Court’s free speech jurisprudence);
Amendment protects advocating the use of force or
Eugene Volokh, The “Speech Integral to Criminal
lawbreaking “except where such advocacy is directed to
Conduct” Exception, 101 CORNELL L. REV. 981 (2016)
inciting or producing imminent lawless action and is
(noting the resurgence of the Court’s use of the “speech
likely to incite or produce such action.”
integral to criminal conduct” exception and proposing ways
to define and limit its scope).
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The First Amendment: Categories of Speech
IF11072
Victoria L. Killion, Legislative Attorney
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