Free Speech 

Fundamentals of Criminal Law by Adam J. McKee

The First Amendment protects the rights of Americans to write, speak, and communicate thoughts and ideas without government interference.

There are, however, five categories of speech that the First Amendment does not protect:

  1. Obscenity refers to material whose primary appeal is to nudity, sex, or excretion.
  2. Profanity refers to irreverence toward sacred things, such as the name of God.
  3. Libel and Slander refer to the defamation of another person.
  4. Fighting words refers to words that are likely to provoke the average person to retaliate.
  5. Clear and present danger refers to an expression that creates a danger to the public, such as shouting “fire” in a crowded theater.

Term of Art:  Speech

The term speech has been interpreted by the Court to cover nearly all forms of expression, including verbal and written words, pictures, photographs, videos, and songs. First Amendment speech also includes expressive conduct such as dressing a certain way,  It even extends to conduct that many people find reprehensible, such as burning flags and crosses.


Obscenity is one of the categories of speech that the First Amendment of the U.S. Constitution does not safeguard. The term generally refers to materials that primarily appeal to prurient interests, such as nudity, sex, or excretion. Legal standards for what constitutes obscenity can vary by jurisdiction but often use tests like the Miller test, which evaluates whether the average person would find that the material appeals to prurient interest, whether it depicts sexual conduct in a patently offensive way, and whether it lacks serious literary, artistic, political, or scientific value. Courts have wrestled with defining the scope of what counts as obscenity, aiming to strike a balance between individual freedom of expression and the potential harm such materials could bring to communities. These limitations acknowledge the societal consensus that some forms of sexually explicit content can be damaging, particularly to minors or other vulnerable populations.


The First Amendment also does not protect profanity, which is speech that shows irreverence toward sacred things, such as the name of God or religious symbols. Unlike obscenity, which generally deals with sexual content, profanity targets the realm of the sacred and religious. It’s important to note, however, that the legal curtailment of profanity has become increasingly complicated due to the diverse religious and cultural landscape of the United States. Laws against profanity have to walk a fine line to avoid establishing a state religion or unfairly privileging one set of religious beliefs over another. As a result, the focus often shifts to the context in which the profanity occurs—such as whether it disrupts public order—rather than the content of the speech itself.

Libel and Slander

Libel and slander are forms of defamation aimed at damaging the reputation of an individual or entity. Libel refers to defamatory statements made in written or printed form, while slander pertains to spoken defamation. These are not protected under the First Amendment because they can cause significant harm to individuals, jeopardizing their personal and professional lives. Legal actions against libel and slander are not only meant to provide remedies to the victims but also to maintain public trust and societal cohesion. To succeed in a defamation suit, plaintiffs usually must prove that the statement was false, damaging, and made without adequate research or verification. Public figures often have a higher burden of proof, needing to demonstrate that the statement was made with “actual malice.”

Fighting Words

“Fighting words” is a legal term referring to speech that is likely to incite an immediate breach of the peace by provoking the average person to retaliate. Such words are not protected by the First Amendment because they can lead to physical harm or disrupt public order. It is a narrowly defined category meant to restrict only those words that would directly lead to violent or disorderly conduct. The concept has been the subject of extensive legal scrutiny as it inevitably brushes up against the bounds of free speech. Courts have been cautious in their interpretation to ensure that the restriction does not become a tool for suppressing unpopular opinions or stifling public debate.

Clear and Present Danger

The “clear and present danger” standard is another exception to First Amendment protections. This doctrine holds that expressions that create an imminent danger to public safety are not protected forms of speech. The classic example is falsely shouting “fire” in a crowded theater, leading to panic and potential injury. This category focuses not on the content of the speech but on the context and likely consequences. The principle aims to balance the fundamental American value of free speech against the necessity of ensuring public safety. Over the years, this doctrine has also been applied to issues like national security, where speech or expression could pose immediate risks to the country’s well-being.

Miller v. California

In Miller v. California (1973), the SCOTUS devised a three-part test to ascertain if speech is obscene and subject to government regulation.  Generally, speech is obscene if

  1. the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest in sex;
  2. it depicts sexual conduct specifically defined by the applicable state law in a patently offensive way; and
  3. it lacks serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15 (1973)

Hate Speech

Hate speech is a complex and contentious issue when it comes to First Amendment protections in the United States. Unlike some other countries, where hate speech is explicitly outlawed, the U.S. takes a more permissive approach under the banner of free speech. According to prevailing legal interpretations, hate speech that consists merely of offensive or discriminatory viewpoints is generally protected by the First Amendment. However, if hate speech crosses into the territory of inciting violence, promoting imminent harm, or falling under the “fighting words” doctrine, it may lose its constitutional protection.

Courts have struggled to define the precise boundaries of what constitutes unprotected hate speech, aiming to balance the need to protect individual freedom of expression with the societal interest in maintaining public order and preventing harm to vulnerable populations. Some critics argue that this permissive approach to hate speech has the potential to perpetuate inequality and social harm, while others contend that restricting hate speech could set a dangerous precedent for the curtailment of civil liberties. Overall, the constitutional status of hate speech in the U.S. remains a point of ongoing debate and legal interpretation.

References and Further Reading

First Amendment.” West’s Encyclopedia of American Law.

Modification History

File Created:  07/12/2018

Last Modified:  09/05/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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