The Supreme Court excludes several categories from First Amendment protection: obscenity, child pornography, incitement to imminent lawless action, true threats, fighting words, fraud, and defamation. These exceptions allow government to regulate or criminalize certain speech without violating the Constitution. The boundaries of these categories are often contested.
The Court defined obscenity in Miller v. California (1973) as material appealing to prurient interest, depicting sexual conduct in a patently offensive way, and lacking serious literary, artistic, political, or scientific value. Brandenburg v. Ohio (1969) limited incitement to speech directed to and likely to cause imminent lawless action, protecting Ku Klux Klan rally speeches that advocated violence only abstractly. True threats are statements meant to intimidate someone into fearing bodily harm. Fighting words are personal insults likely to provoke immediate physical retaliation. Commercial speech (advertising) is partially protected, allowing more government regulation than political speech.
Recent debates involve whether the government can regulate misinformation or disinformation, and whether social media platforms should be forced to host all speech. Courts have held that social media content moderation is protected editorial discretion, not censorship.
Unprotected speech categories allow government to restrict harm without censoring political debate. However, the narrow scope of these exceptions protects dissent: speech is not excluded just because it's false, controversial, or offensive.
People often think false speech is automatically unprotected. In practice, false political speech is usually protected; only false statements causing specific harms (like defamation or fraud) are restricted.
Unprotected speech categories allow government to restrict harm without censoring political debate. However, the narrow scope of these exceptions protects dissent: speech is not excluded just because it's false, controversial, or offensive.
People often think false speech is automatically unprotected. In practice, false political speech is usually protected; only false statements causing specific harms (like defamation or fraud) are restricted.