Encouraging Lawlessness: Is Free Speech Without Limits?

Freedom of speech is a fundamental right in democratic societies, but it is not absolute. While the First Amendment protects the right to articulate opinions and ideas without interference, it does not permit speech that incites law-breaking or violence. The Supreme Court has ruled that the government may restrict or penalize speech intended to incite or produce imminent lawless action, provided it meets the strict scrutiny standard and serves a compelling state interest. This means that while offensive, hateful, or harassing speech may be protected, true threats, defamation, fighting words, and obscenity are generally not. The line between protected and unprotected speech is often blurry, and the Supreme Court has struggled to define clear boundaries, adapting to changing social norms and values.

Incitement of illegal activity is not protected by the First Amendment

The First Amendment to the U.S. Constitution protects the freedom of speech, religion, and the press. It also protects the freedom to assemble peacefully and to petition the government. However, the right to free speech is not absolute, and there are certain categories of speech that are not protected by the First Amendment. One of these categories is incitement of illegal activity or incitement to imminent lawless action.

Incitement of illegal activity refers to speech that encourages or urges others to break the law, including committing acts of violence. This type of speech is not protected by the First Amendment and can be banned and penalized by the government. To constitute incitement, the Supreme Court has set out specific criteria that must be met. Firstly, there must be a substantial likelihood that the illegal activity will occur imminently. Secondly, the speech must be directed specifically at causing this imminent illegal activity. For example, a speaker exhorting an audience to engage in vandalism and destruction of property would meet these criteria and would not be protected by the First Amendment.

The Supreme Court has ruled on several cases that helped establish the standards for regulating incitement and other speech that encourages unlawful conduct. In the case of Schenck v. United States (1919), Justice Holmes introduced the "clear and present danger" test, which allowed the government to prohibit speech if it created a clear and present danger of substantive evils that the government had a right to prevent. However, this test was later replaced by the Brandenburg standard in Brandenburg v. Ohio, where the Court ruled that the government could only ban or penalize speech that incited or produced imminent lawless action and was likely to do so.

In addition to incitement, other categories of speech that are not protected by the First Amendment include true threats, fighting words, obscenity, defamation, and harassment. These categories of speech can be restricted or penalized by the government without violating the First Amendment. It is important to note that the government's ability to regulate speech primarily applies to government action and does not prohibit restrictions on speech imposed by private parties on their property.

The First Amendment does not protect 'true threats'

The First Amendment to the U.S. Constitution protects the freedom of speech, religion, and the press. It also protects the freedom to assemble and petition the government. However, the right to free speech is not absolute, and there are certain categories of speech that are not protected by the First Amendment. One such category is "true threats".

True threats refer to statements that convey a serious expression of an intent to commit an act of unlawful violence against a particular individual or group of individuals. The speaker need not actually intend to carry out the threat, but they must have spoken with "the intent of placing the victim in fear of bodily harm or death". In determining whether a statement constitutes a true threat, courts consider various factors, including the context of the statement, the conditional nature of the supposed threat, and the reaction of the listeners.

The Supreme Court has ruled that true threats are not protected by the First Amendment and can be prosecuted under state and federal criminal laws. This is because true threats endanger individuals, disrupt social order, and create a possibility that the threatened violence will occur. In the 2023 case of Counterman v. Colorado, the Supreme Court held that to convict a person of making true threats, it must be shown that the speaker had a subjective understanding of whether the person to whom the words were directed would perceive them as threatening. The Court defined this subjective standard as a "recklessness" threshold, which requires demonstrating that the speaker "consciously disregarded a substantial risk" that their communications would be viewed as threatening violence.

It is important to distinguish true threats from political hyperbole and joking statements, which are protected under the First Amendment. For example, in Watts v. United States (1969), the Supreme Court ruled that an anti-Vietnam War protester's statement about wanting to get President Lyndon B. Johnson "in my sights" was political hyperbole and not a true threat. Similarly, in Elonis v. United States (2015), the Court overturned the conviction of a man who posted rap lyrics on Facebook that appeared to threaten his ex-wife, as it was not established that he intended for them to be viewed as a threat.

In conclusion, while the First Amendment protects freedom of speech, it does not protect true threats. True threats involve statements that intend to place individuals in fear of bodily harm or death and can be prosecuted by law. The determination of a true threat considers the context, nature, and impact of the statement, and the speaker's intent is a crucial factor in such cases.

The government can restrict speech if it poses a threat to public safety and order

The First Amendment of the U.S. Constitution protects the freedom of speech, religion, and the press. It also protects the freedom to assemble peaceably and the right to petition the government. The government may not abridge the freedom of speech, but there are exceptions to this rule.

The government can restrict speech that:

• Defames a specific individual
• Constitutes a genuine threat or harassment
• Is intended and likely to provoke imminent unlawful action or otherwise violates the law

The government can also reasonably regulate the time, place, and manner of speech to ensure it does not disrupt the ordinary activities of the government. These exceptions have been interpreted narrowly by the Supreme Court and state and federal courts.

The government can also restrict speech that incites imminent lawless action. In the case of Brandenburg v. Ohio, the Supreme Court ruled that:

> The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

The government can also restrict speech that is obscene, makes or distributes obscene materials, or burns draft cards as an anti-war protest.

However, the government cannot restrict speech that:

• Refuses to salute the flag
• Allows students to wear black armbands to school to protest a war
• Uses certain offensive words and phrases to convey political messages
• Contributes money (under certain circumstances) to political campaigns
• Advertises commercial products and professional services (with some restrictions)
• Engages in symbolic speech, (e.g., burning the flag in protest)

The First Amendment does not protect obscenity

The First Amendment to the U.S. Constitution protects the freedom of speech and the press. However, this protection does not extend to certain categories of speech, including obscenity. The Supreme Court has struggled to define obscenity, but several tests have been developed to determine whether material is obscene and therefore unprotected by the First Amendment.

In Roth v. United States (1957), the Supreme Court first held that obscenity was not protected by the First Amendment. The Court explained that while the First Amendment protects expression with even the smallest amount of social importance, obscenity has none. The Court defined obscenity as material that treats sex in a way that appeals to prurient interest, or a shameful or morbid interest in nudity, sex, or excretion. The Roth Court established a three-part test for identifying obscenity:

• Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
• Whether the work is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
• Whether the work is utterly without redeeming social value.

In Memoirs v. Massachusetts (1966), the Court restated the Roth test, adding value as a consideration. The Memoirs Court held that for material to be deemed obscene, it must:

• Have a dominant theme that appeals to prurient interest;
• Be patently offensive because it oversteps current community standards; and
• Be completely devoid of redeeming social value.

In Miller v. California (1973), the Court set forth the current standard for determining obscenity, which turns on whether the average person finds that, as a whole, the material:

• Appeals to prurient interests according to contemporary adult community standards;
• Depicts or describes sex or sexual activity in a patently offensive manner according to contemporary adult community standards; and
• Lacks serious artistic, political, literary, or scientific value.

The Miller test is now the leading test for obscenity cases, but it continues to stir debate. One of the main points of contention is the question of whether a national standard or local community standards should be applied when evaluating material for obscenity.

The Supreme Court has struggled to define unprotected 'obscenity'

The Supreme Court has struggled to define what constitutes unprotected obscenity. In the 1964 Jacobellis v. Ohio case, the Court stated that it was faced with the task of trying to define what may be indefinable. In Memoirs v. Massachusetts, the Supreme Court refined the Roth test to material that is "patently offensive" and "utterly without redeeming social value". However, these precedents resulted in an unclear definition of obscene material that could be banned by government authorities.

In Miller v. California, the Supreme Court clarified the legal definition of obscenity as material that lacks "serious literary, artistic, political, or scientific value". The ruling was the origin of the three-part judicial test for determining obscene media content that can be banned by government authorities, which is now known as the Miller test. The Miller test asks:

• Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
• Whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law.
• Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The Miller ruling, and particularly the resulting Miller test, was the Supreme Court's first comprehensive explication of obscene material that does not qualify for First Amendment protection and thus can be banned by governmental authorities. Furthermore, due to the three-part test's stringent requirements, very few types of content can now be completely banned, and material that is appropriate for consenting adults can only be partially restricted per delivery method.

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