What Types of Speech Are Not Protected by the First Amendment?

Deirdre O'Donoghue
Deirdre O'Donoghue  |  March 14, 2019

Americans like to claim that they can say anything because they are protected by their First Amendment rights, but the reality is that some types of speech are not protected.

Most commonly referred to as free speech, Americans luckily have the ability to say what they please and not get in any legal trouble. However, there are some caveats to having freedom of speech.

Public relations (PR) professionals are now expected to understand how PR and law work together so that they can keep their clients out of trouble, especially when their clients enjoy practicing his or her freedom of speech often.

If you’re here on a mission, feel free to jump ahead:

What types of speech are not protected by the First Amendment?

Not all types of speech are protected, but it’s for our greater safety that there are some restrictions. These exceptions to the First Amendment are made for types of speech that violate the legal rights of others or present harm to our government or country.

So what do all of these terms mean, and what are examples of them in the real world? In this article, I’ll give you a look into what the First Amendment does not protect.

And no, I can’t get you out of trouble for exercising your freedom of speech to your mother-in-law over the holidays.

But what is the First Amendment?

To understand what the First Amendment doesn’t protect, we should probably go over what it exactly guarantees.

Let’s take this one step back to the U.S. Constitution— the Constitution includes the Bill of Rights and the Amendments. It is in the U.S. Constitution, within the amendments, that you’ll see the First Amendment, stating:

Article [I] (Amendment 1 - Freedom of expression and religion)

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Within this lengthy sentence is a lot of information. All we need to know for the purposes of this article is that the First Amendment prohibits the government from restricting press or individuals to speak freely and assemble in a peaceful manner to petition the government.

To say it in a way that actually makes sense, it means we can say what we want and tell the government we don’t like what they’re doing.

But we all know free speech can be messy and convoluted. So, let’s clear some things up and learn about the types of speech that are not protected under the First Amendment.

Freedom of Speech exclusions explained

Of course, there are some logical situations where you can assume certain types of speech are not protected, but with the ability to transfer information at the snap of your finger, the rules have become more unclear.

Not only are there grey areas with the Freedom of Speech, but also with the rise of technology there’s a lack of understanding. Usually, when you have a question, you can get an answer pretty quickly on Google or the G2 Learning Hub. But when it comes to the law, words get long and fancy, and people begin to explain everything using “lawyer speak”.

So I’m here to clearly explain what is not protected by the First Amendment and give examples so that you can avoid these mistakes in your public relations career.

Obscenity

This type of speech may seem vague, but there is a three-prong standard (Miller test) for determining if something falls under obscenity or not.

The Miller test is named after the Supreme Court case Miller v. California (1973) where the court redefined its definition of obscenity and found Miller guilty of distributing obscene materials containing images of hardcore pornography.

Miller test for obscenityThe case is only considered obscene if all three of these conditions are satisfied.

The first two are holding cases to community standards, meaning, the societal norms of acceptable conduct. Most recently community standards are used in social media when they remove particularly offensive content, making the platforms user-friendly for a broader audience.

Then, the third prong of the Miller Test considers if the case at hand has redeeming values. So if the case has significant value to the arts and sciences, it will be ruled as not obscene. The third prong exists to hold the work at a national level, not local, to ensure balance.

Child pornography

This is one of the categories where you’re thinking, “Well.. duh.” Although obscene, there are more specific regulations and it is not ruled against the Miller Test.

If the work is classified under child pornography at all, it is not protected under the First Amendment. Simple as that.

A piece of work that is considered child pornography visually depicts children under 18, shows a child performing sexual acts, or exhibiting their genitals. And in most cases, private possession of child pornography is outlawed.

Fighting words

Fighting words, written or verbal, create a confrontation. By using fighting words, you are not protected by the First Amendment because the words incite hatred or violence, and disrupt overall peace.

One example of someone being indicted from using fighting words was in 2001 when a man driving on the highway repeatedly flashed a sexually suggestive sign to a woman driving. The court decided that the man conducted himself in a way that alarmed and angered the woman, finding him guilty of disorderly conduct. They also ruled this because he knew that his words would have a negative effect on the victim (State v. Hubbard, 2001).

Defamation

Often times people use defamation, libel, and slander interchangeably. However, libel and slander are types of defamation. I’ve already gone more in depth for you to learn about libel vs. slander, but because you’re here I’ll give an overview.

Defamation is a false statement presented as a fact that causes damage to a person. Libel is a false defamatory statement made in writing. Slander is a false defamatory statement that is verbally spoken.

The First Amendment does not protect people from facing legal action if they defame another person through written or verbal communication.

Here’s a hypothetical example, say you’re going to the best burger joint in the city, but see an article posted about the restaurant that claims the food gave several people salmonella. Of course, you change plans and go to get Italian. Later on, it comes out that the Italian restaurant is a competitor and made up the news story so that their business could gain more customers. In this scenario, the Italian restaurant defamed the burger joint, hurting its reputation and negatively impacting its profits.

Example of defamationBy Harley Schwadron

True threats

As you’ve probably noticed, types of speech not protected by the First Amendment have many rules and nuances. They are always judged on a case-by-case basis, but there are some hard and fast rules when it comes to true threats.

Any threat to the President of the U.S. is treated as a true threat, and anything suggesting terrorism is viewed as a true threat, especially when posted online. For example, a bomb threat is not protected by the First Amendment and falls under the category of a true threat.

This is why being careful about what your clients are putting on the internet is crucial to PR success. If the threat is credible, there will be consequences. The context, intent, and target also matter when evaluating threats.

The Supreme Court is very cautious about going against the Constitution in order to maintain the important privilege of Freedom of Speech. So movements like boycotts and protests are protected by the First Amendment.

Incitement

Speech that pressures or encourages individuals to commit illegal and/or dangerous acts is not protected by the First Amendment. When the speech causes people to take unlawful actions, they are violating the right to Freedom of Speech.

Most recently, in the press, there was a case of two teenagers who formed a virtual relationship. Conrad Roy expressed to Michelle Carter that he was depressed, after urging him to get help, Carter began encouraging him to take his life. She was on the phone with him when he died by suicide and moments before she continued to urge him to do so. Carter was later found guilty of involuntary manslaughter.

This case opened up the conversation about technology and the law. It shows the dangers of incitement and how Freedom of Speech does not protect from causing harm to others through speech.

Crimes involving speech

Crimes that use speech to commit them, such as perjury, blackmail, and harassment are not protected by the First Amendment either. These are all crimes in and of themselves, but because they involve speech, they get a spot on this list.

We hear about perjury, blackmail, and harassment all the time on our true crime shows and podcasts, but do we know what these words really mean?

Definition of perjury, blackmail, and harassment

So now you know and can apply this to your crime show binge-watches… or I suppose your public relations strategy.

Speech owned by others

Copyrights and trademarks fall under this exception to the First Amendment. Copyrights and trademarks are included within the intellectual property rights, which are the rights of the creator to use his or her creation for an agreed upon amount of time.

A notable example of a copyright battle is The Associated Press (AP) vs. Fairey in 2009. The street artist, Shepard Fairey, who created the famous “Hope” poster during former President Obama’s presidential run in 2008 was demanded compensation from the AP. The photo Fairey based his poster off of was shot by an AP freelancer, and Fairey never credited the freelancer.

Shepard Fairey’s Hope poster suspected of copyright infringementBy Shepard Fairey

They came to a private settlement, but this case caused a conversation about copyright in the modern age. None of this would’ve happened had Fairey fairly (see what I did there?) credited the freelancer, Mannie Garcia.

Moral of the story here is if someone has gone through the time to copyright, trademark, patent, or get any rights to their intellectual goods, do not copy them. It’s always best practice to give people credit where credit is due. Be sure to always check with a lawyer or professional to ensure you’re not infringing upon these rights.

Public employee speech

When working in specific roles, your speech may be regulated by the government to ensure the protection of the greater good. In most states, your employer can terminate your employment at a said company if you make statements that are viewed as obscene or simply unagreeable.

Then there are regulated industries like healthcare, pharmaceuticals, financial services, insurance, banking, and education that have rules with which employers should be familiar.

Government agencies who impact employee speech

And for a deep dive into these agencies, check out what federal agencies regulate speech.

Commercial speech

Recently dubbed as having diminishing protection by the First Amendment, commercial speech is officially a free speech exception. But after reading this, you be the judge. I think it falls right under a type of speech not protected by Freedom of Speech.

First, false or misleading advertising is a no-no and can be subject to punishment. Coming from an advertising background, I can personally attest to the fact that advertising does not have the same Freedom of Speech that a private citizen has.

A lot of times the government agencies listed above have rules and regulations for commercial speech. Do you think the creatives in ad agencies chose to put a lengthy dialogue about the side effects of a pharmaceutical drug? Or the person who made car commercials with cars going 90 MPH down a ski hill wanted to say “Do not attempt” at the bottom? The answer is no.

The government is doing all of this to protect us from false information while allowing brands to speak to us through advertisements. 

To further segment types of speech, there is also political speech. Learn more about political vs. commercial speech so if you’re representing clients from these professions, you’ll be ready for anything.

Say it loud and proud-ish

Court adjourned! You just learned a whole lot of information on what types of speech are protected by the First Amendment. Now you can apply this to your PR practice and impress your co-workers with legal information gained from somewhere other than Law & Order.

Ready to explore more about public relations and law? Learn how to navigate copyright guidelines in PR.

Deirdre O'Donoghue
Author

Deirdre O'Donoghue

Deirdre O’Donoghue is a Senior Content Marketing Specialist at G2. She brings her passion for research and creativity to her writing. In her free time you can find Deirdre fostering puppies or exploring the Chicago foodie scene.