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FIRE advocates for robust free speech rights for all — but certain narrowly defined types of expression do not receive First Amendment protection. 

The categorical exceptions to the First Amendment are few, narrow, and carefully defined. To protect freedom of expression, they must remain that way. But they do exist, each for good reason. And as campuses grapple with students and faculty expressing their free speech rights, it’s useful to revisit the boundaries between protected expression and actionable misconduct.

Below, we detail categories of speech that fall outside of constitutional protections. 

Categories of Unprotected Speech

Incitement

Incitement — speech that is both “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” — is unprotected by the First Amendment. 

The standard comes from the Supreme Court’s 1969 decision in Brandenburg v. Ohio, a First Amendment challenge to the arrest of Ku Klux Klan members under an Ohio criminal syndicalism law. Journalists captured footage of the armed Klansmen using slurs against black and Jewish people. The Klansmen stated there “might have to be some revengeance taken” against government officials and announced a march on Congress on the Fourth of July. The Court struck down the Ohio law because the statute “purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action."

As with true threats and intimidation, determining whether speech constitutes incitement requires careful consideration of contextual circumstances. Mere advocacy of lawbreaking or violence remains protected speech as long as it is not intended to and likely to provoke immediate unlawful action.

True Threats

In Virginia v. Black (2003), the Supreme Court defined true threats as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” 

Importantly, the speaker does not need to actually intend to engage in violence for the government to punish threats or intimidation. As the Supreme Court clarified earlier this year in Counterman v. Colorado, the speaker crosses beyond the First Amendment’s protection when he knows of or “consciously disregard[s] a substantial risk that his communications would be viewed as threatening violence.” 

That being said, true threats are distinguishable from heated rhetoric. For example, the Court held in Watts v. United States (1969) that the First Amendment protected a man’s statement — after being drafted to serve in the Vietnam War — that “[i]f they ever make me carry a rifle the first man I want to get in my sights is L. B. J.,” as the statement was not a true expression of intent to kill the president.

Fighting Words

Fighting words are those that, by the very act of being spoken, tend to incite the individual to whom they are addressed to respond violently and to do so immediately, with no time to think things over. The fighting words category is an exceedingly limited classification of speech, encompassing only face-to-face communications that would obviously provoke an immediate and violent reaction from the average listener.

Learn more about fighting words

Protected Speech

Issue Pages

The Supreme Court has consistently held the First Amendment to protect much more than mere words to include many forms of expression.

Read More

Obscenity

In Miller v. California (1973), the Supreme Court outlined a three-prong standard that material must meet in order to be considered legally obscene:

1. whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the “prurient interest” (an inordinate interest in sex);
2. whether the work depicts or describes, in a patently offensive way, sexual conduct;
3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Note: This third prong is considered an “objective” standard and is judged by reference to national rather than community standards.)

If all three prongs are met, the material enjoys virtually no First Amendment protection in the jurisdiction where it is adjudicated obscene, and the government may regulate its transmission, communication, or sale. 

Defamation

The First Amendment protects false speech, with very limited exceptions, including defamation and fraud. Defamation is a false statement of fact that (1) is communicated to a third party; (2) is made with the requisite guilty state of mind; and (3) harms an individual’s reputation. To be defamatory, a statement must be an assertion of fact (rather than mere opinion or rhetorical hyperbole) and capable of being proven false. As to state of mind, if the person allegedly defamed is a public figure, he or she must prove “actual malice” — namely, that the speaker made the statement either with knowledge of its falsity or with reckless disregard for the truth. A non-public figure need only prove that the speaker was negligent in making the false statement.

Learn more about defamation

Fraud and Perjury

While, again, the First Amendment makes no categorical exception for false or misleading speech, certain types of fraudulent statements fall outside its protection. The government generally can impose liability for false advertising or on speakers who knowingly make factual misrepresentations to obtain money or some other material benefit (such as employment). Prohibitions on perjury — knowingly giving false testimony under oath — also are constitutional.

Speech Integral to Criminal Conduct

In Giboney v. Empire Storage & Ice Co. (1949), the Supreme Court held the First Amendment affords no protection to “speech or writing used as an integral part of conduct in violation of a valid criminal statute.” A robber’s demand at gunpoint that you hand over your money is not protected speech. Nor is extortion, criminal conspiracy, or solicitation to commit a specific crime. Abstract advocacy of lawbreaking remains protected speech.

Learn more about speech integral to criminal conduct