Categories of Unprotected and Restricted Speech
The First Amendment protects most speech, but the Supreme Court has identified several categories that receive little or no protection. Understanding these categories forms the foundation for most exam questions.
Obscenity and the Miller Test
Obscenity receives no First Amendment protection under the Miller Test from Miller v. California (1973). Speech qualifies as obscene only if it meets all three prongs. First, it must appeal to prurient interest according to contemporary community standards. Second, it must describe sexual conduct in a patently offensive way. Third, it must lack serious literary, artistic, political, or scientific value.
Fighting Words and Defamation
Fighting words are personal insults likely to provoke immediate physical confrontation. The Supreme Court defined them in Chaplinsky v. New Hampshire (1942). These words receive no protection and can be restricted by law.
Defamation consists of false statements that harm someone's reputation. It can result in civil liability. True statements, even harmful ones, are protected speech.
True Threats and Incitement
True threats communicate a serious intent to harm someone and receive no protection. This category is narrower than it sounds. Statements that merely advocate for violence are protected unless they constitute a true threat.
Incitement to imminent lawless action can be restricted under the Brandenburg framework (discussed in the next section). This category protects most advocacy while preventing speech that directly encourages immediate illegal action.
Child Sexual Abuse Material
Child sexual abuse material is categorically unprotected. Courts will not grant protection even if the material has artistic merit. This is the only category where artistic value provides no defense.
The Brandenburg Test and Incitement
The Brandenburg Test is the most important framework for analyzing speech restrictions. It comes from Brandenburg v. Ohio (1969) and applies when government tries to restrict speech based on incitement to lawlessness.
The Two-Prong Standard
Speech can only be restricted if it meets both requirements. First, the speech must be directed to inciting or producing imminent lawless action. Second, it must be likely to incite or produce such action. Both prongs must be satisfied.
This two-prong test replaced older standards that gave government broader power to suppress speech. The Brandenburg standard is deliberately strict to protect free expression.
Why Imminence Matters
Imminence is the critical feature of Brandenburg. A speaker advocating for illegal action at some indefinite future time is protected speech. A speaker directly encouraging an angry crowd to immediately attack a nearby building would likely fail the test.
For example, saying "We should eventually overthrow the government" is protected. Saying "Let's attack the courthouse right now" is not. The timing determines whether Brandenburg applies.
Common Student Errors
Students often confuse Brandenburg with other tests, making this a frequent source of exam errors. The key distinction is that Brandenburg focuses on imminence and direct incitement, not abstract advocacy of illegal ideas.
Brandenburg has been applied to KKK rallies, protest speech, and online communications. This breadth shows why the test is crucial for modern First Amendment law.
Content-Based and Content-Neutral Restrictions
The Supreme Court distinguishes between two types of speech restrictions based on whether they target the message itself.
Content-Based Restrictions
Content-based restrictions regulate speech based on its message, viewpoint, or subject matter. They receive strict scrutiny, the highest level of constitutional review. Government must prove the restriction serves a compelling interest and is narrowly tailored to achieve that interest.
Strict scrutiny is rarely satisfied. A law banning only anti-government speech while allowing pro-government speech is clearly content-based. So is a law that restricts criticism of specific government officials but not others.
Content-Neutral Restrictions
Content-neutral restrictions regulate speech based on time, place, or manner without regard to the message. They receive intermediate scrutiny, a lower standard. Government must show a significant interest and that the restriction is narrowly tailored.
A law limiting all public demonstrations to certain hours is content-neutral. So is a law requiring permits for large gatherings, applied regardless of the message being conveyed.
Viewpoint Discrimination
Viewpoint discrimination occurs when government regulates speech based on the perspective or ideology expressed. This is a subset of content-based restriction. Courts are particularly hostile to viewpoint discrimination and often strike it down immediately.
The distinction between these categories fundamentally determines what level of scrutiny applies. This determines whether the restriction will likely be upheld. Students must practice identifying whether a restriction targets the message itself or merely its time, place, or manner.
Symbolic Speech and Expressive Conduct
Symbolic speech, or expressive conduct, refers to actions taken to convey a message rather than words. The Supreme Court recognizes certain conduct as constitutionally protected when it conveys an intended message that the audience will understand.
The O'Brien Test
The leading case is United States v. O'Brien (1968), which established a four-part test for analyzing symbolic speech regulations. Government action must be constitutional. It must further an important or substantial government interest. It must be unrelated to suppressing free expression. Finally, any incidental restriction on speech must be no greater than essential.
All four prongs must be satisfied for a restriction to be constitutional.
Protected Symbolic Speech Examples
Flag burning is protected symbolic speech under Texas v. Johnson (1989). Wearing armbands to protest war is protected under Tinker v. Des Moines (1969). Nude dancing as expressive conduct has received some protection in specific contexts.
The flag burning case is particularly important and frequently tested. It demonstrates the Court's commitment to protecting even deeply offensive political expression.
When Conduct Can Be Restricted
Not all conduct expressing a message receives protection. The O'Brien test allows restrictions on symbolic speech when government's interest is unrelated to suppressing the message. You could restrict flag burning if the restriction was truly based on fire safety rather than opposition to the political message.
Students must practice identifying what constitutes expressive conduct versus mere conduct that happens to occur during expression. This distinction determines whether constitutional protection applies.
Special Contexts: Schools, Workplaces, and Government Employees
Speech restrictions are often permitted in special contexts where government has particular institutional interests. These contexts allow greater regulation than applies in public forums.
Student Speech in Public Schools
Public schools have greater authority to restrict student speech than government has over adult speech. The primary standard comes from Tinker v. Des Moines (1969). Schools can restrict student speech only if it materially and substantially disrupts school operations or infringes on others' rights.
However, Bethel School District v. Fraser (1986) permits schools to restrict vulgar or lewd speech. Hazelwood School District v. Kuhlmeier (1988) allows restrictions on school-sponsored publications if restrictions are reasonably related to legitimate pedagogical concerns.
Schools can also restrict speech that is threatening, harassing, or discriminatory. Schools need not wait for actual disruption; they can restrict speech creating reasonable forecast of disruption. This is a lower standard than Brandenburg's test.
Government Employee Speech
Government employees face greater speech restrictions under Pickering v. Board of Education (1968). Employees can be disciplined for speech on matters of public concern only if government's interest in efficiency outweighs the employee's free speech interest.
Speech on private matters receives even less protection. Employees lose some First Amendment rights when they accept government employment.
Private Employment and Government Funding
Private employment speech receives minimal constitutional protection. The First Amendment applies only to government action, not private employers. Private employers can restrict speech much more broadly than government can.
Government funding of speech creates another special context. Government can restrict how recipients use funds without violating the First Amendment. This allows funding conditions that would be unconstitutional if applied directly.
Understanding these contextual variations is essential for success. They frequently appear in essay questions requiring nuanced application of free speech principles.