Also known as: unprotected category · unprotected speech
Written by attorneys — see sources below.
Categories of expression that the Supreme Court has identified as falling outside the scope of First Amendment protection. The government may therefore prohibit or regulate speech within these categories without satisfying strict scrutiny. The main categories include obscenity, fraudulent misrepresentation, defamation, advocacy of imminent lawless behavior, fighting words, and child pornography.
Ulrike Ulrich stood inches from a pedestrian on a city sidewalk and shouted personally abusive epithets about the pedestrian's mother. The pedestrian clenched a fist and stepped forward as if to strike. Police cited Ulrich under a municipal ordinance punishing face-to-face insults likely to provoke immediate retaliation. The citation stands because the words qualify as fighting words.
Usha Upton sold digital images depicting minors engaged in sexual conduct through an online marketplace. The images did not meet the Miller obscenity test. Federal prosecutors charged Upton under a statute criminalizing distribution of such material. The charges proceed because the material falls within the distinct unprotected category of child pornography.
Umeko Uchida posted a series of messages on social media stating that she would kill her former employer. The messages caused the employer to fear for her safety and to alter her daily routine. Prosecutors charged Uchida under a federal threat statute. The statements qualify as true threats outside First Amendment protection.
Anthony Douglas Elonis was an active user of the social networking website Facebook. In May 2010, Elonis’s wife of nearly seven years left him, taking with her their two young children. Elonis began listening to more violent music and posting self-styled rap lyrics inspired by the music under the pseudonym Tone Dougie. The lyrics Elonis posted included graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement. This material was often interspersed with disclaimers that the lyrics were fictitious with no intentional resemblance to real persons. Elonis posted a photograph of himself holding a toy knife against a co-worker’s neck with the caption I wish, after which the chief of park security fired him. Elonis posted an adaptation of a satirical sketch in which he substituted his wife for the President. The posting described firing a mortar launcher at her house from the cornfield behind it. After viewing some of Elonis’s posts, his wife felt extremely afraid for her life and obtained a three-year protection-from-abuse order against him. Elonis posted about the order and referenced having enough explosives to take care of the State Police and the Sheriff’s Department. Elonis posted an entry stating he had enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined. After park security informed the FBI, agents monitored Elonis’s Facebook activity and visited his house. Elonis then posted Little Agent Lady describing slitting an FBI agent’s throat and detonating a bomb. A grand jury indicted Elonis on five counts of violating 18 U.S.C. §875(c). At trial Elonis requested a jury instruction that the government must prove that he intended to communicate a true threat. The District Court instead instructed the jury that a statement is a true threat when a defendant intentionally makes a statement in a context wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of an intention to inflict bodily injury. The jury convicted Elonis on four of the five counts. The Third Circuit affirmed. The Supreme Court granted certiorari.
Umar Underwood, an attorney, placed an advertisement in a newspaper offering legal services for a fixed fee. State bar rules prohibited such advertising at the time. The bar disciplined Underwood for the advertisement. Commercial speech receives intermediate scrutiny rather than full First Amendment protection.
After admission to the bar in 1972, appellants worked as attorneys with the Maricopa County Legal Aid Society. In March 1974, they left the Society and opened a law office in Phoenix that they called a legal clinic. Their aim was to provide legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid by accepting only routine matters such as uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name. To keep costs down, they relied on extensive use of paralegals, automatic typewriting equipment, and standardized forms and office procedures. After conducting their practice in this manner for two years, they concluded that advertising, and in particular the advertising of fees, was necessary to generate the volume of business required for the clinic to survive. On February 22, 1976, they placed an advertisement in the Arizona Republic, a daily newspaper of general circulation in the Phoenix metropolitan area. The advertisement stated that appellants were offering legal services at very reasonable fees. It listed exact prices for the services, including $175 plus a $20 filing fee for an uncontested divorce or legal separation, $225 plus a $20 filing fee for an uncontested adoption, $250 plus a $55 filing fee for a non-business bankruptcy, and $95 plus a $20 filing fee for a change of name, with personal injury cases handled on a contingent fee basis. Upon the filing of a complaint initiated by the president of the State Bar, a hearing was held before a three-member Special Local Administrative Committee. The committee recommended that each of the appellants be suspended from the practice of law for not less than six months. Upon further review by the Board of Governors of the State Bar, the Board recommended only a one-week suspension for each appellant, the weeks to run consecutively. Appellants sought review in the Supreme Court of Arizona. The court rejected both their Sherman Act and First Amendment claims, concluded that the conduct violated the disciplinary rule, and imposed a sanction of censure. Appellants then appealed to this Court, which noted probable jurisdiction.
Uri Underwood operated a website displaying material that was indecent but not obscene. A federal statute criminalized the transmission of such material to minors. Underwood challenged the statute after receiving a notice of potential enforcement. The statute falls because it sweeps too broadly over protected speech in cyberspace.
In 1996 Congress enacted the Communications Decency Act as Title V of the Telecommunications Act of 1996. Immediately after the President signed the bill, twenty plaintiffs including the American Civil Liberties Union filed suit in the Eastern District of Pennsylvania against the Attorney General challenging the constitutionality of 47 U.S.C. §§ 223(a)(1)(B) and 223(d). A week later a second suit was filed by twenty-seven additional plaintiffs; the cases were consolidated and a three-judge district court was convened. The district court conducted an evidentiary hearing based on a detailed stipulation of 356 paragraphs plus live testimony and made 410 findings of fact. Those findings described the Internet as an international network of interconnected computers that had grown from roughly 300 host computers in 1981 to approximately 9,400,000 by the time of trial, with about 40 million users expected to reach 200 million by 1999. The findings detailed communication methods including e-mail, mail exploders, newsgroups, chat rooms, and the World Wide Web, noting that any person or organization with Internet access could publish information and that the content available was as diverse as human thought. The district court further found that sexually explicit material on the Internet included text, pictures, and chat extending from the modestly titillating to the hardest-core, that such material was widely available but users seldom encountered it accidentally because a series of affirmative steps was required to access specific content, and that almost all sexually explicit images were preceded by warnings. The court determined there was no effective way to determine the identity or age of a user accessing material through e-mail, mail exploders, newsgroups, or chat rooms and that credit-card or adult-password verification systems were not economically feasible for most noncommercial providers and would impose significant burdens including the exclusion of adults without credit cards. The district court entered a preliminary injunction against enforcement of the two challenged provisions. The Government appealed directly to the Supreme Court under the CDA's special review provisions, and the Court noted probable jurisdiction.
Ulric Unger produced and distributed films depicting computer-generated images of minors engaged in sexual conduct. No actual children were used in the production. Federal prosecutors charged Unger under a statute banning virtual child pornography. The charges are dismissed because the material does not fall within the unprotected category of actual child pornography.
In 1996 Congress enacted the Child Pornography Prevention Act, which expanded the federal prohibition on child pornography beyond images made using actual children. The CPPA retains the prohibition on actual-child pornography and adds three other prohibited categories of speech, of which the first, § 2256(8)(B), and the third, § 2256(8)(D), are at issue in this case. Any visual depiction that is or appears to be of a minor engaging in sexually explicit conduct became unlawful, as did any image advertised, promoted, presented, described, or distributed in a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct. The new provisions reached computer-generated images, images produced with youthful-looking adults, and materials pandered as child pornography even if no children were involved in their creation. The Free Speech Coalition, a California trade association for the adult-entertainment industry, joined by Bold Type, Inc., publisher of a book advocating the nudist lifestyle, painter Jim Gingerich, and photographer Ron Raffaelli, filed suit in the United States District Court for the Northern District of California. The plaintiffs alleged that their members and they themselves produced sexually explicit works without using minors yet feared the works could fall within the Act's expanded definition, chilling protected expression. The district court granted summary judgment to the government. The Court of Appeals for the Ninth Circuit reversed, holding the challenged provisions substantially overbroad. Four other courts of appeals had upheld the statute, creating a conflict that prompted the Supreme Court to grant certiorari in 2001. Congressional findings accompanying the Act noted that computer technology now permits creation of realistic images of children who do not exist and that such images could be used to seduce children, whet pedophiles' appetites, and complicate prosecution of cases involving real children. The respondents' works included paintings, photographs, and publications that did not involve minors, and the suit was brought to prevent application of the Act to those materials. The procedural path ran from the Northern District of California through the Ninth Circuit to the Supreme Court for resolution of the facial challenge.
No. Even within an unprotected category such as fighting words, the government may not draw content-based or viewpoint-based distinctions. An ordinance that punishes only insults concerning race, religion, or gender identity while leaving equally provocative insults on other topics unregulated violates the First Amendment.
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…the following exception onto its newly announced First Amendment rule: Content-based distinctions may be drawn within an unprotected category of speech if the basis for the distinctions is "the very reason the entire class of speech at issue is proscribable." Ante , at 388. Thus, the argument goes, the statute making it illegal…
…that the perpetrator had “the right to be where [he was].” See ante , at 11. And the same should be true with respect to unprotected speech. Neither classic “fighting words” nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or…
…prevail if challenged. The use of overbreadth analysis reflects the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected
…we held in Speiser v. Randall, supra , when a State proposes to deny a privilege to one who it alleges has engaged in unprotected speech, Due Process requires that the State bear the burden of proving that the
…First Amendment doctrine. We generally have not required a heightened mental state under the First Amendment for historically unprotected categories of speech
The principal unprotected categories are obscenity, fraudulent misrepresentation, defamation, advocacy of imminent lawless behavior, fighting words, and child pornography. Speech falling outside these categories receives First Amendment protection and triggers strict scrutiny when the government regulates on the basis of content.
No. The government may criminalize the sale and distribution of visual depictions of minors engaged in sexual conduct even if the material would not be obscene under Miller. The compelling interest in protecting children from sexual exploitation supports this distinct unprotected category.
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No. A state statute restricting the sale or rental of violent video games to minors is a content-based regulation of protected speech subject to strict scrutiny. The Court has declined to recognize violence as a new category of unprotected speech.
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