Also known as: unprotected category · unprotected speech
Written by attorneys · grounded in primary & secondary sources — see 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.
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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.
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.
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.
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.
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
…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
…First Amendment doctrine. We generally have not required a heightened mental state under the First Amendment for historically unprotected categories
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.
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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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