The First Amendment provides that:  “Congress shall make no law…abridging the freedom of speech…” This language has not received a literal interpretation by the Supreme Court.  On the one hand, the coverage of the amendment is broader than the language implies.  To begin with, the First Amendment applies to more than just Congress.  As we have seen in earlier classes, many of the protections of the Bill of Rights, including the First Amendment, have been extended to state and local governments.  Also, the prohibitions of the First Amendment apply to all branches of government, not merely the legislature.  A court that enjoins a peaceful march or a local school board that fires a teacher for criticizing one of its policies would be in violation of the First Amendment.  The First Amendment, however, does not apply to private action.  The board of a private school could, in fact, fire one if it’s teachers for speaking out.


            On the other hand, despite the absolutist language “shall make no laws abridging…,” the Supreme Court has consistently allowed some governmental controls on speech.  There are some types of speech, such as obscenity, that are not protected by the First Amendment.  Governments may also place some reasonable controls on the time, place, and manner of communication, although they must do so very carefully in order to avoid a violation.  Much of the case law in this area revolves around what kind of speech can be controlled and how the government may go about doing so.  In many areas there are no clear lines separating constitutional from unconstitutional control of speech, and cases involving such line drawing have often been very controversial.


A.  What is Protected Speech?


1.  Conduct versus Speech


            When the government tries to regulate or punish any kind of communication, a number of questions must be answered to determine if the controls will survive a constitutional challenge.  The most basic is whether the conduct to be controlled qualifies as “speech.”


            This is not as simple as it may seem.  Numerous activities that do not involve the use of words have been held to be speech, while in some cases, use of language, both written and oral, may not be considered speech.  Examples of expressive conduct that have been held to be speech are wearing black armbands or burning the American flag to protest the Vietnam war.  Although no words are spoken, the acts themselves are intended to communicate ideas and may be given the same protection as actual words.       On the other hand, the government may punish painting words on a public building (graffiti), or threatening to reveal damaging secrets if not paid (blackmail), even though that conduct involves written or spoken words.


2.  Is it Protected Speech?



            Next, it must be determined if the speech in question is protected by the First Amendment.  Certain kinds of speech have not been given constitutional protection.  For example, states may allow damage suits against persons who have made slanderous or libelous statements.  Slander consists of orally making and libel consists of publishing false statements that are damaging to the reputation of another.  Another example of unprotected speech is incitement to illegal action.  Someone who stands before a crowd and encourages them to start a riot would not receive First Amendment protection.


a.  Obscenity


            Two particular kinds of unprotected speech, obscenity and fighting words, have given the courts particular difficulty.  The Supreme Court has struggled to define obscenity.  It has held that obscenity is “utterly without redeeming social importance,” and therefore “not within the area of constitutionally protected speech.” 


            In order to declare material obscene, a court must determine:


(a)                that the average person, applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest (defined as a shameful or morbid interest in sex) and is designed to excite lustful thoughts,


(b)               that the work depicts or describes, in a patently offensive way, sexual conduct specifically prohibited by state law, and


(c)                that the work, taken as a whole lacks serious literary, artistic, political or scientific value.


            Defining the term has proven much easier than applying it.  Justice Stewart once wrote of obscenity,  “I know it when I see it, and the motion picture involved in this case is not that.”  The Supreme Court has on numerous occasions overturned convictions for obscenity without giving any reasons other than simply stating that the material was not obscene.


b.  Fighting words


            The other difficult area of unprotected speech is “fighting words.”  In 1942, in the case of Chaplinsky v. New Hampshire, the Supreme Court upheld the conviction of a man for giving a speech  denouncing all religions as a racket and  referring to one listener as “a God damned racketeer and a Fascist.”  The Court found no constitutional protection for “fighting words,” defined as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”


            Although the Court has never overruled Chaplinsky, it has never again upheld a conviction for fighting words.  Some activities held not to be fighting words, and therefore protected have been:  burning the American flag, wearing a jacket with the words “fuck the draft,” the Ku Klux Klan’s burning of a white cross, and a Nazi march through a predominately Jewish neighborhood.  The Court has held that in order for speech to be considered fighting words, it must normally be directed at an individual and not at a group.  It has also held that authorities cannot use the mere possibility of a violent audience reaction to arrest a speaker.


B.  What Level of Protection does the Speech Receive?


            Not all constitutionally protected speech is given the same level of protection.  Although it has not been put in a separate category, political speech has received the greatest protection.  The Court has stated that the ability to criticize the government and government officials is central to the meaning of the First Amendment.  On the other hand, some types of speech have been given somewhat less protection than other kinds of speech. One example of this is commercial speech.  Until 1975 the Court had held that commercial speech was not constitutionally protected and could be broadly regulated by the states.  Since then, however, the Court has given commercial speech significant protection, holding, for example, that a state could not prohibit pharmacies from advertising the prices of prescription drugs.  However, the states still retain the right to regulate commercial speech in some ways that other types of speech could not be regulated.  For example, a state may prohibit a manufacturer from making false or unsubstantiated claims about its product, but a state may not prohibit a politician from making unsubstantiated claims about his record.


            The Court has also given authorities more power to regulate speech in certain situations.  While a private citizen could not be punished for using profanity, the Court has held that a public broadcaster can be punished for using profanity over the airwaves and a student may be punished for using profanity at school.  Although public school students have some free speech rights, school authorities have much greater authority to control student speech than the government has to control citizens’ speech generally.


C.  How May Speech be Regulated?


1.  Content Neutrality


            Any attempt to regulate speech must be content neutral; that is the government may not regulate speech based either on its subject matter or its viewpoint.  An example of impermissible subject-matter regulation is an ordinance that prohibited any picketing in a certain neighborhood except labor picketing.  An example of impermissible viewpoint regulation is an ordinance prohibiting signs critical of a foreign government within 500 feet of its embassy.  Although regulation of signs within the area of foreign embassies might be allowed, the law cannot distinguish between favorable and unfavorable signs.


2.  Prior Restraints


            The Court has established a strong presumption against prior restraint, the attempt to prohibit speech in advance.  Even speech that may be punished after the fact normally may not be prohibited in advance.  For example, if an author makes false and derogatory statements about an individual in a book, she may be sued by that individual for damages.  It would be almost impossible, however, for that individual to stop publication or sale of that same book in advance.


            Although the Supreme Court has announced a few areas in which prior restraint might be tolerated, they have provided extraordinarily strict limitations. One exception mentioned by the Court has been for purposes of “national security.”  It has stated that the government, on national security grounds, could prohibit a newspaper from publishing “the sailing dates of transports or the number and location of troops.” However,  when the government tried to use this exception to prevent publication of the Pentagon Papers (excerpts from a top secret Defense Department history of the Vietnam War), the Court held that the government had not met its very difficult burden of showing immediate and irreparable damage to the Nation.


            Similarly, the Court has announced that prior restraint is theoretically available to preserve a defendant’s right to a fair trial.  However, a judge must meet a very difficult three-part test to issue a gag order against the media prohibiting disclosure of  facts relating to a criminal trial.  The Court has not allowed such a gag order to stand in any case so far.


3.  Vagueness and Overbreadth


            When the government attempts to regulate or prohibit speech, it must contend with the related doctrines of vagueness and overbreadth.  In order not to be “void for vagueness,” any prohibition must make clear what speech is prohibited.  This requirement is designed not only to be fair to the person being prosecuted, but also to prevent chilling the speech of other individuals, discouraging them from expression that is constitutionally protected, for fear it might be punished. A regulation is overbroad if it not only regulates unprotected speech, but also could be applied to protected speech.


            The best way for a state to protect its legislation from being held vague or overbroad is to describe, as narrowly and clearly as possible, what speech is prohibited.  The problem, however, is that as the prohibition gets narrower and more specific, it runs a greater risk of being held to be unconstitutional content regulation.  For example, the Court has held a statute prohibiting any “words or abusive language tending to cause a breach of the peace” void for vagueness and overbreadth.  But a statute that prohibited the display of symbols known to “arouse anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender” was held to draw unconstitutional content-based distinctions.