Viewpoint

Melinda Esposito Hergert

9/14/2025 at 7:20 AM ·

There seems to be a lot of confusion among supposedly educated people about what free speech actually is. Let's explore:

SPEECH NOT PROTECTED BY THE FIRST AMENDMENT

The First Amendment to the United States Constitution enshrines one of the nation’s most cherished freedoms: the right to free speech. Yet this right is not absolute. Over the course of American history, the Supreme Court has drawn boundaries, holding that certain forms of expression fall outside constitutional protection. These limits are narrowly defined, applying only when speech directly causes harm, is inseparable from crime, or lacks redeeming social value. The following categories illustrate the main types of unprotected speech, each defined through landmark legal cases.

INCITEMENT TO IMMINENT LAWLESS ACTION

The Court first drew a line against incitement in Brandenburg v. Ohio (1969). In that case, a Ku Klux Klan leader’s inflammatory rhetoric was scrutinized. The Court ruled that advocacy of violence is not protected if it is intended and likely to produce “imminent lawless action.” For example, urging a crowd to immediately storm a government building would fall outside First Amendment safeguards.

TRUE THREATS

Speech that communicates a serious intent to harm another person is unprotected. In Virginia v. Black (2003), the Court clarified that “true threats” encompass statements where a reasonable person would perceive an intent to commit unlawful violence. Sending a letter that declares, “I will kill you tomorrow,” exemplifies a true threat and lies beyond constitutional protection.

OBSCENITY

Obscenity occupies another unprotected category, defined in Miller v. California (1973). The Court established the “Miller test,” which asks whether material appeals to prurient interests, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. Only material meeting all three criteria is deemed obscene. Distribution of such content is not protected by the First Amendment.

CHILD PORNOGRAPHY

The Court has taken an especially firm stance against child pornography. In New York v. Ferber (1982), the justices held that any visual depiction of minors engaged in sexual activity is unprotected, regardless of whether it meets the obscenity test. The rationale is rooted in the state’s compelling interest in protecting children from exploitation.

DEFAMATION

False statements that damage another person’s reputation also fall outside First Amendment protection. In New York Times Co. v. Sullivan (1964), the Court balanced free expression with reputational harm, holding that public officials must prove “actual malice” — that a falsehood was published knowingly or with reckless disregard for the truth. Nonetheless, deliberately spreading lies that ruin a person’s standing can be restricted.

FRAUD AND PERGURY

Fraudulent speech is not constitutionally shielded, as it is speech integral to criminal conduct. Misrepresenting investments in a Ponzi scheme, for instance, constitutes fraud and is punishable. Likewise, lying under oath — perjury — undermines the justice system and is not protected speech.

SOLICITATION AND CRIMINAL SPEECH

The law also excludes speech that solicits crime or forms part of criminal conduct. Offering money for someone to commit murder or conspiring to carry out illegal acts are clear examples. Blackmail, extortion, and instructions for committing crimes fall within this category as well.

FIGHTING WORDS

Although applied less frequently today, the doctrine of “fighting words” originated in Chaplinsky v. New Hampshire (1942). The Court held that words which “by their very utterance” inflict injury or incite immediate breaches of the peace are not protected. While modern courts rarely apply this standard, face-to-face insults likely to provoke violence still occupy a narrow exception.

COMMERCIAL SPEECH

Commercial speech enjoys some constitutional protection, but false or misleading advertising does not. Businesses may not claim false cures, misstate product safety, or promote illegal goods. Such speech is regulated to protect consumers and preserve market integrity.

NATIONAL SECURITY AND CLASSIFIED INFORMATION

Although more limited, national security concerns provide another exception. Speech that reveals classified information, such as military positions or nuclear launch codes, may be restricted in order to protect national defense and public safety.

CONCLUSION

The First Amendment reflects America’s deep commitment to freedom of expression, but this freedom has limits. Through cases such as Brandenburg v. Ohio, Virginia v. Black, Miller v. California, New York v. Ferber, New York Times v. Sullivan, and Chaplinsky v. New Hampshire, the Supreme Court has carefully carved out narrow exceptions for speech that threatens violence, exploits children, defames reputations, or is inseparable from criminal conduct. These exceptions underscore a central principle: while the Constitution vigorously protects the exchange of ideas, it does not shield speech that directly undermines law, safety, or human dignity.

Mindy Esposito 09/14/2025