What Speech Isn’t Free?

Don’t try yelling “fire” in here

The U.S. Supreme Court upheld a federal law against child pornography on Monday, concluding in a 7-2 ruling that “offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment”–which, as you may know, says that “Congress shall make no law . . . abridging the freedom of speech.”

For most Americans, this particular case wasn’t particularly controversial. But it does raise an interesting point. Even with the Constitution’s free speech protections, there are times when, legally, we have to keep our big mouths shut.

So when aren’t you free to shoot from the lip? There are basically four types of speech that the First Amendment doesn’t protect: obscenity, incitement to illegal action, defamation, and fighting words. There are also restrictions on things like advertising and harassment, but we’ll cover those another time.

Limit #1: Obscenity

The Constitution doesn’t give you the right to be obscene (not that we really think you’d want to be). Although the Supreme Court has struggled for years to define “obscenity,” it has consistently maintained that, whatever it is, it’s not legally protected. The key test was established in Miller v. California in 1973. The Court held that expressions are obscene if they meet all three of the following criteria:

1. “The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.”
2. “The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.”
3. “The work, taken as a whole, lacks serious literary, artistic, political or scientific value.”

The questions this test raises are pretty obvious. What’s an “average” person? What are “community standards,” and who sets them? Who decides what counts as “serious literary, artistic, political or scientific value”? Nevertheless, you still have to follow these rules–for as Justice Potter Stewart famously said about pornography, “I know it when I see it.”

Limit #2: Incitement to Illegal Action
In 1919, the Court held that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” The justices weren’t aiming to guarantee the sanctity of your moviegoing experience. Rather, their point was that the First Amendment doesn’t protect speech that creates a “clear and present danger” of “substantive evils that Congress has a right to prevent.”

More recent cases have clarified this limitation, and left you with a fair amount of freedom. Basically, you’re allowed to argue for anything–even, say, the violent overthrow of the government. You just can’t incite imminent illegal activity. For example, at a rally outside IRS headquarters, saying “we should overthrow the government and dismantle the IRS!” would be protected speech. Saying “attack those agents coming out the door!” would not.

Limit #3: Defamation
You also aren’t free to go around damaging other people’s reputations by lying about them. That’s defamation, and it basically comes in two forms. Slander is spoken defamation. Libel is written (or otherwise recorded) defamation.

The Court has established fairly tough standards for public figures (like politicians and celebrities) who accuse you of defamation. They have to prove not only that what you said was untrue, but also that your lie showed “actual malice.” A private citizen, on the other hand, can win a claim simply if you’re careless about the facts. Of course, it’s easy to avoid defaming people. Just follow a version of mom’s old rule: “If you don’t have something nice to say, don’t say anything untrue.” If what you say is true, it’s not defamatory.

Limit #4: Fighting Words
Suppose someone cuts in front of you in line. If the colorful language you then direct toward that person is so abusive and insulting that fisticuffs are likely to follow, you can’t take refuge behind the First Amendment. Fighting words–”those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”–aren’t protected.

Basically, that means you’re not free to spew insults and abuse into another person’s face. The police, or other authorities, can intervene and stop you without violating your First Amendment rights. On the plus side, it follows that other people aren’t free to spew insults and abuse into your face, either. But then, why would anyone do something like that to a nice person like you?