A handy guide to what types of speech are not protected by the First Amendment


Here’s a useful guide to non-controversial types of speech that are not protected by the First Amendment, as recently re-articulated by the Supreme Court. Note that “hate speech” is not among them:

From 1791 to the present the First Amendment has permitted restrictions upon the content of speech in a few limited areas and has never included a freedom to disregard these traditional limitations.

These historic and traditional categories are long familiar to the bar, including obscenity,  defamation, fraud,  incitement, and speech integral to criminal conduct–are well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.

The associated cases:

  • Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991)
  • Roth v. United States, 354 U. S. 476, 483 (1957)
  • Beauharnais v. Illinois, 343 U. S. 250, 254-255 (1952)
  • Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976)
  • Brandenburg v. Ohio, 395 U. S. 444, 447-449 (1969)
  • Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)
  • Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942).

Further Reading:

How To Spot And Critique Censorship Tropes In The Media’s Coverage Of Free Speech Controversies A superbly useful guide to help you understand who is right and who is wrong when they invoke the First Amendment in the media.



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