Unprotected Speech: A Footnote to the First Amendment

Although the First Amendment preserves several rights, the one of import for this post is the freedom of speech (FoS). The FoS is one of the prized rights retained by the people, and there is a heavy burden on government action that infringes on this right. There are many tests and legal presumptions (also could be the subject of another blog), but ultimately not all speech is treated equally. Basically, there is protected and unprotected speech. The classic example of unprotected speech is the person who yells “fire” in a crowded movie theater, when there is in actuality no fire at all.

So, here is a laundry list of the various forms of unprotected speech: speech that 1) creates a clear and present danger of imminent lawless action; 2) constitutes “fighting words” as defined by a narrow, precise statute; 3) obscenity (speech, film, etc.); 4) if it constitutes defamation; 5) or violates regulations against false or deceptive advertising.

This is a very basic summary of the exceptions to the First Amendment. There is a plethora of case law on what the court defines as clear and present danger. You will also notice that “fighting words” depends on a “defined, narrow, precise statute.” In summary, while Americans enjoy freedom of speech remember that it can be curbed within reason.

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