The First Amendment: Categories of Speech

The First Amendment: Categories of Speech

Updated March 28, 2024
The First Amendment: Categories of Speech
The Free Speech Clause of the First Amendment prohibits
Political, Ideological, and Other Forms of Non-
the government from “abridging the freedom of speech” but
Commercial Speech
does not define what that freedom entails. The Supreme
Apart from commercial speech, the Supreme Court has not
Court has long interpreted the Clause to greatly
developed a formal hierarchy of protected speech for
circumscribe government regulation of “protected” speech
purposes of applying legal scrutiny. For example, content-
(including some forms of expressive conduct) while giving
based speech restrictions generally receive strict scrutiny
the government greater leeway to regulate a handful of
regardless of the topic at issue. At the same time, the Court
limited categories that the Court has deemed largely
has long maintained that “[n]ot all speech is of equal First
“unprotected.” This In Focus summarizes the main
Amendment importance.” Thus, the judicially ascribed
categories of protected and unprotected speech in First
“value” of the protected speech may matter in some
Amendment jurisprudence.
circumstances.
Introduction
The Court has long considered political and ideological
The Supreme Court’s current approach to free speech is not
speech to be at the core of the First Amendment, including
entirely categorical. That is, just because a law implicates
speech concerning “politics, nationalism, religion, or other
protected speech does not mean that the law automatically
matters of opinion.” This speech can take forms beyond the
violates the Free Speech Clause. Likewise, the First
written or spoken word, such as funding or symbolic acts. A
Amendment may still provide grounds to challenge a law
regulation of political or ideological speech generally
regulating unprotected speech. Nevertheless, the category
receives some form of heightened scrutiny, whether that be
of speech at issue can help determine what First
strict scrutiny for content-based laws, intermediate scrutiny
Amendment standards, including what level of judicial
for content-neutral laws, or the exacting scrutiny standard
scrutiny, a court might apply in a constitutional challenge to
often applied to campaign finance disclosure requirements.
the law. A reviewing court would likely apply strict
The Court has also opined that the “Free Speech Clause
scrutiny to a law regulating protected speech on the basis of
exists principally to protect discourse on public matters.”
its content—that is, its topic or message. Strict scrutiny is a
Accordingly, the Court has distinguished between matters
very difficult standard for the government to satisfy because
of public concern or interest and matters of purely private
it requires proof that the law is the least restrictive means of
concern in contexts such as tort law or public employee
advancing a compelling governmental interest. If a law
speech. As summarized by the Court, “[s]peech deals with
regulates only protected commercial speech, however, a
matters of public concern when it can ‘be fairly considered
court might apply intermediate scrutiny, which has no least-
as relating to any matter of political, social, or other
restrictive-means requirement. Intermediate scrutiny still
concern to the community,’ ... or when it is a subject of
requires the government to show, inter alia, that the law is
legitimate news interest,” regardless of “the arguably
narrowly tailored to a substantial government interest. By
‘inappropriate or controversial character’” of the content.
contrast, if a law regulates only unprotected speech, it
might receive no First Amendment scrutiny or the lenient
Commercial Speech
standard of rational basis review. Thus, for laws that
Commercial speech—speech that merely proposes a
regulate speech or bills that propose to do so, the category
commercial transaction or relates solely to the speaker’s
of speech involved may be an important factor in evaluating
and the audience’s economic interests—has historically
whether a particular measure is likely to survive a First
received less First Amendment protection than other forms
Amendment challenge.
of protected speech. Under Central Hudson Gas & Electric
Corp. v. Public Service Commission of New York,
Protected Speech
commercial speech restrictions typically receive
The Supreme Court has recognized that the First
intermediate scrutiny if they are directed at non-misleading
Amendment’s protections extend to individual and
speech concerning a lawful activity. Such laws are
collective speech “in pursuit of a wide variety of political,
constitutional only if they directly advance a substantial
social, economic, educational, religious, and cultural ends.”
government interest and are not broader than necessary to
Accordingly, speech is generally protected under the First
serve that interest. The Court in recent years has appeared
Amendment unless it falls within one of the narrow
receptive to applying a heightened level of scrutiny to laws
categories of unprotected speech discussed in the next
that single out commercial speakers for less favorable
section. Whether the Court applies strict scrutiny or a lower
treatment based on the content of their speech. In contrast,
form of scrutiny, however, depends on the character and
courts have sometimes applied “Zauderer review”—a
context of the speech.
standard more lenient than intermediate scrutiny but more
stringent than rational basis review—to laws requiring
disclosure of factual, uncontroversial information.
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The First Amendment: Categories of Speech
Unprotected Speech
inciting or producing imminent lawless action and is likely
While content-based laws are typically subject to strict
to incite or produce such action.” In other words, the
scrutiny, the Supreme Court has recognized limited
government may punish “statements ‘directed [at]
categories of speech that the government may regulate
producing imminent lawless action,’ and likely to do so,”
because of their content, as long as it does so evenhandedly.
but generally may not prohibit or punish “mere advocacy of
The Court generally identifies these categories as obscenity,
the use of force or violence.”
defamation, fraud, incitement, fighting words, true threats,
speech integral to criminal conduct, and child pornography.
Fighting Words
The contours of these categories have changed over time,
In 1942, the Supreme Court held in Chaplinsky v. New
with many having been significantly narrowed by the
Hampshire that the First Amendment does not protect
Court. In addition, the Court has been disinclined to expand
“fighting words”—those “likely to provoke the average
upon this list, declining to recognize, for example, violent
person to retaliation, and thereby cause a breach of the
entertainment or depictions of animal cruelty as new
peace.” The Court has since stated, however, that “speech
categories of unprotected speech.
cannot be restricted simply because it is upsetting or
arouses contempt.” Although the Court continues to cite
Obscenity
“fighting words” as an example of speech that the
For material to be obscene, and thus unprotected under the
government may proscribe, it has not upheld a government
First Amendment, it must meet the standard set out in
action on the basis of that doctrine since Chaplinsky.
Miller v. California: the material, considered as a whole,
“appeal[s] to the prurient interest in sex” (as judged by
True Threats
contemporary community standards), depicts or describes
The First Amendment does not bar the government from
specifically defined sexual conduct in “a patently offensive
prohibiting “true” threats. True threats—as distinguished
way,” and “lacks serious literary, artistic, political, or
from “political hyperbole”—occur when the speaker
scientific value.” Not all sexually explicit material rises to
“means to communicate a serious expression of an intent to
the level of legally obscene.
commit an act of unlawful violence to a particular
individual or group of individuals.” To comply with the
Defamation
First Amendment, the government must prove that the
Defamation involves certain false statements of fact about a
defendant either knew or recklessly ignored—that is,
person conveyed verbally (slander) or in writing (libel). As
“consciously disregarded a substantial risk”—that the
a tort claim, the elements of defamation depend on the
defendant’s “communications would be viewed as
relevant state’s law and the Supreme Court’s free speech
threatening violence.”
precedents. Although defamatory statements are considered
unprotected speech, the Court has recognized First
Speech Integral to Criminal Conduct
Amendment limits on liability in defamation cases. For
In general, the First Amendment affords no protection to
example, in cases where the statement concerns a public
speech “used as an integral part of conduct in violation of a
official or figure, the party alleging defamation must
valid criminal statute.” The Court has cited this rule as one
demonstrate that the speaker acted with “actual malice,”
reason the government may prohibit traditional inchoate
that is, knowledge that the statement was false or reckless
offenses such as conspiracy or solicitation to commit a
disregard as to its truth or falsity.
crime, or offers or requests to obtain illegal material. This
category does not give the government carte blanche to
Fraud
criminalize speech because of its content.
Recognizing that “some false statements are inevitable if
there is to be an open and vigorous expression of views in
Child Sexual Abuse Material
public and private conversation,” the Supreme Court has
The Supreme Court in New York v. Ferber recognized
rejected a categorical First Amendment exception for false
“child pornography”—now commonly referred to as “child
statements. Still, the Court has stated that false statements
sexual abuse material” or “CSAM”—as a category of
can form the basis for other “legally cognizable harm[s]”
unprotected speech separate from obscenity. The Court
such as defamation or fraud. A “properly tailored fraud
reasoned that the advertising and sale of such materials are
action” might require proof of “a false representation of a
integral to the underlying criminal conduct of their
material fact,” knowledge “that the representation was
production. As defined in Ferber, this category of
false,” “intent to mislead the listener,” and reliance by or
proscribable speech involves materials that “visually depict
injury to the listener. The government may also prohibit
sexual conduct by children below a specified age.” Without
false or inherently deceptive commercial speech, often
a depiction of an actual minor, such material might be
without triggering the intermediate scrutiny standard
considered protected speech (unless legally obscene). The
applicable to most commercial speech restrictions.
Court has not squarely decided the First Amendment status
of altered images that depict identifiable minors.
Incitement
In Brandenburg v. Ohio, the Supreme Court held that the
Victoria L. Killion, Legislative Attorney
First Amendment protects advocating the use of force or
lawbreaking “except where such advocacy is directed to
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The First Amendment: Categories of Speech

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