Gavin Howe
In the United States, the First Amendment to the U.S. Constitution strongly protects freedom of speech and expression from government restrictions. However, this does not mean that individuals have the right to say whatever they want, whenever and wherever they want. The Supreme Court of the United States has recognized several categories of speech that are not protected by the First Amendment, including obscenity, fraud, child pornography, speech integral to illegal conduct, and speech that incites imminent lawless action. Additionally, the government may enact reasonable time, place, or manner restrictions on speech. While the First Amendment prevents government restrictions on speech, it does not restrict private individuals or businesses from imposing their own limitations. Furthermore, there are laws in place that restrict the ability of private entities to limit the speech of others, such as employment laws that protect employees' right to free speech.
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What You'll Learn
Obscenity and fraud
The First Amendment protects the right to free speech, but there are certain categories of speech that are given lesser or no protection. These include obscenity, fraud, child pornography, incitement, defamation, and commercial speech.
Obscenity
The First Amendment does not protect obscenity, as determined by the Miller test. Obscenity is defined as material that appeals to a “shameful or morbid interest in sex” and treats sex in a way that appeals to prurient interest. It does not include depictions of sex within scientific, artistic, and literary contexts, which are protected by the First Amendment. The Supreme Court has ruled on multiple cases involving obscenity, including Butler v. Michigan (1957), where the Court invalidated a state statute that criminalized the general distribution of materials inappropriate for minors. The Court held that restrictions on material inappropriate for children but not obscene for adults must be narrowly tailored to uphold First Amendment rights.
Fraud
The First Amendment also does not protect certain types of fraudulent statements, including false advertising, factual misrepresentations made to obtain money or benefits, and perjury. The government can impose liability in these cases. Additionally, speech that is an integral part of conduct in violation of a valid criminal statute is also unprotected, as ruled in Giboney v. Empire Storage & Ice Co. (1949).
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Child pornography
The illegal production, transportation, distribution, receipt, advertising, and possession of child pornography are considered harmful to the physiological, emotional, and mental health of the children depicted and have a detrimental effect on society as a whole. Federal sentencing guidelines on child pornography differentiate between production, distribution, and purchasing/receiving, and also include variations in severity based on the age of the child involved in the materials, with significant increases in penalties when the offense involves a prepubescent child.
Federal jurisdiction is implicated in a child pornography offense if it occurred in interstate or foreign commerce, which includes the buying, selling, or moving of products, services, or money across state borders, or between the United States and any place outside its borders. The use of the U.S. Postal Service or common carriers, such as airlines, railroads, and trucking companies, to transport child pornography across state or international borders would trigger federal jurisdiction. Additionally, the transmission of child pornography using the Internet constitutes transportation in interstate commerce, and federal jurisdiction almost always applies when the Internet is used to commit a child pornography violation.
Simple possession of child pornography is punishable by up to 10 years in federal prison, and subsequent offenses can carry up to 20 years in prison. If the child pornography images portray children under 12 years old, the maximum punishment is increased to 20 years' imprisonment. Convictions for second or subsequent offenses of mere possession carry 10 to 20 years in federal prison. Federal law enforcement officials must notify a child pornography victim (or the victim's guardian if the victim is still a minor) each time officials charge an offender with a child pornography offense related to an image depicting the victim.
In addition to federal law, state child pornography laws may also be enforced, and an offender can be prosecuted under these laws in addition to, or instead of, federal law.
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Speech integral to illegal conduct
The First Amendment protects freedom of speech in the United States. It states that "Congress shall make no law...abridging freedom of speech". However, the U.S. Supreme Court has recognised several types of laws that restrict speech, and certain types of speech are not protected by the First Amendment. This includes speech integral to illegal conduct, which refers to speech designed to or necessary to accomplish an illegal purpose. For example, in the case of North Carolina v. Hansen, the defendant was charged with violating a federal statute prohibiting the encouragement or inducement of non-residents to illegally enter the country. The defendant argued that his speech was protected by the First Amendment, but the Court disagreed, stating that the words "encourage" or "induce" within the statute refer to the criminal law concepts of solicitation and facilitation, also known as aiding and abetting.
Another example of speech integral to illegal conduct is perjury, impersonation, and false reports, where an individual makes a false statement to a law enforcement officer or agency with the intent to mislead or obstruct justice. This type of speech interferes with significant government interests and is intertwined with criminal conduct, and therefore is not protected by the First Amendment.
The Supreme Court has also ruled on cases involving school speech, such as Morse v. Frederick, where the defendant claimed that the slogan "BONG HiTS 4 JESUS" was intended to provoke amusement or disgust and not to advocate anything. However, the Court ruled that it could be punished under the school speech doctrine as a reasonable person could interpret it as advocating illegal drug use, which was against school policy.
It is important to note that any given offense may implicate more than one exception to protected speech, and defenders must be vigilant for potential First Amendment issues when a prosecution is based on speech. While the First Amendment protects the right to freedom of speech, it also restricts the government from requiring individuals or corporations to finance certain types of speech with which they do not agree. This balance between protecting freedom of speech and respecting other rights, such as an author's rights over their works, is an ongoing area of scrutiny by the courts.
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Speech inciting imminent lawless action
The First Amendment protects freedom of speech. However, there are some categories of speech that are given lesser or no protection by the First Amendment and may be restricted. These include obscenity, fraud, child pornography, speech integral to illegal conduct, and speech that incites imminent lawless action.
- Advocacy of force or criminal activity
- The speaker intends to incite a violation of the law that is both imminent and likely
In the early 20th century, incitement was determined by the "clear and present danger" standard established in Schenck v. United States (1919). Justice Oliver Wendell Holmes Jr. observed:
> "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
In Brandenburg v. Ohio (1969), this was narrowed to an "imminent lawless action" standard, with the Supreme Court unanimously reversing the conviction of a Ku Klux Klan group for "advocating violence as a means of accomplishing political reform". The Court ruled that their statements at a rally did not express an immediate or imminent intent to do violence. This decision overruled Schenck v. United States (1919), which held that a "clear and present danger" could justify a law limiting speech.
The Supreme Court clarified that mere advocacy of lawbreaking or violence remains protected speech as long as it is not intended to and likely to provoke immediate unlawful action. In practice, determining whether speech constitutes incitement requires careful consideration of the context.
It is important to note that the government's ability to regulate speech is more complex when it acts as a subsidizer of the speech in question. Generally, the government can say whatever it wants, even if it favors one viewpoint over another. However, if the government is trying to encourage a diversity of private views indiscriminately, it must remain viewpoint-neutral.
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Speech that violates intellectual property law
The First Amendment of the US Constitution protects freedom of speech, but there are exceptions to this right. One of these exceptions is speech that violates intellectual property law. Intellectual property rights are a permissible restriction on free speech. This includes copyrights and trade secrets. For example, copying copyrighted works without permission can lead to legal and financial penalties.
Businesses and individuals should always seek permission from the copyright holder and properly cite sources to avoid copyright violations. Obtaining proper licensing agreements is necessary if one wishes to use patented technology legally. In the case of Harper & Row v. Nation Enterprises (1985), the Supreme Court upheld copyright law against a First Amendment free speech challenge.
Trademarks are another form of intellectual property protection. They cover particular messages, slogans, brands, designs, or other types of expressions. Trademark law protects consumers from confusion and prohibits others from using trademarks in a way that creates consumer confusion over brands. However, there is a tension between trademark protection and the First Amendment. Expressive works may sometimes satirize, parody, criticize, or otherwise use trademarks in their message. In such cases, the trademark owner may attempt to bring a trademark infringement action, but this must be done without violating the First Amendment.
Patents are a further type of intellectual property. A patent gives the holder the right to exclude others from making, using, offering for sale, selling, or importing the invention. Manufacturing knockoff products that mimic patented designs can result in legal action for patent infringement, with companies facing lawsuits, financial penalties, and criminal charges.
If someone is violating your intellectual property, you can gather evidence, review your IP rights, and send a cease-and-desist letter. If the issue persists, you can file a complaint or seek legal action through an intellectual property attorney.
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Frequently asked questions
Yes, the First Amendment to the U.S. Constitution protects your freedom of speech and expression from government restrictions. This includes the decision of what to say and what not to say.
Yes, there are certain categories of speech that are given lesser or no protection by the First Amendment. These include obscenity, fraud, child pornography, speech integral to illegal conduct, incitement to imminent lawless action, speech that violates intellectual property law, true threats, false statements of fact, and commercial speech.
The government can impose reasonable time, place, and manner restrictions on speech. However, the First Amendment prevents the government from restricting the content of speech and the ability to speak.
Yes, there are laws that restrict the ability of private businesses and individuals from limiting the speech of others. For example, employment laws restrict employers from preventing employees from disclosing their salary to coworkers or organizing labor unions.
