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By Joseph Brugellis, Marketing Editor

The ability to express one’s beliefs on political and social matters through speech—verbal or nonverbal—without fear of government-led censure for doing so is a central element of American democracy. The First Amendment to the Constitution protects this right by proscribing Congress from passing a law “abridging the freedom of speech” possessed by individuals (U.S. Const. amend. I). Vigorous enforcement of the Free Speech Clause is vital “for the political participation of [the citizenry]” by preserving an open marketplace of ideas whereby citizens may “form their [political] opinions and judgments” in a complete manner via the full exposure to the merits of “various [competing] viewpoints” on issues of significance (Badamchi 2015). The expression of political speech may take on numerous forms: spoken words, written pamphlets, or symbolic action. But no matter the form of expression, political speech cannot be prohibited by the government simply “because of its message, its ideas, its subject matter, or its content” (“Ashcroft v. ACLU”). 

As broad as the contours of the First Amendment may be, the enumerated rights protected within are not absolute. Governments on the local, state, and federal levels have all attempted to set limits on the degree to which individuals may speak freely (“Categories of Speech”). That is because an unqualified right to speech and expressive conduct can often conflict with a separate, but undoubtedly important, governmental interest: protecting both the citizenry and the state itself from actual or threat of violence. After all, any functioning society would seek to ensure stability among its members. Preventing the actual or perceived incitement of violence against either the body politic at large or its individual members via appropriate legislation is legally permissible in certain circumstances. If an individual exercises his or her free speech rights to communicate a message perceived as being (a) an incitement of violence, (b) fighting words against another person, or (c) true “threats” against an individual or collective group, the First Amendment “does not bar” a government from taking suppressive action against the speech (“Categories of Speech”). The clash between the Free Speech Clause and government-backed attempts to prevent violence has been fought along these battle lines for more than a century. An analysis of each of these three unprotected speech categories will help to illuminate how the scope of this precious First Amendment right has fluctuated throughout the years. 

Before performing such an analysis, a general historical background of the First Amendment’s Free Speech Clause and how it has been interpreted by the Federal Judiciary is warranted. 

The First Amendment—together with the other nine separate provisions that collectively make up the Constitution’s Bill of Rights—was hardly the major focus of debate in Philadelphia at the beginning of the Constitutional Convention of 1787. Much of the discussion in Philadelphia was instead focused on setting up the structure and powers of the federal government to correct for the many fundamental deficiencies present in the previous national charter—the Articles of Confederation (Rosen and Rubenstein 2023). When the participants of the Convention finally got around to discussing what we know today as the Bill of Rights, their discussion was largely limited to whether such a document was necessary at all to preserve ordered liberty (Hamilton 1787). Many Federalists such as Alexander Hamilton strongly opposed a Bill of Rights, arguing that its inclusion was not only unnecessary but could even dangerously serve as an implied pretext for the government to assume regulatory powers over individual liberties (Hamilton 1787). Anti-Federalists and several state legislatures, however, voiced much concern over the absence of any provisions in the Constitution explicitly protecting individual liberties such as freedom of speech or religion (NCC Staff 2023). Therefore, in order to secure the ratification of the Constitution by these states, James Madison (with Anti-Federalist input) drafted a list of proposed amendments that would eventually become the Bill of Rights (NCC Staff 2023). Upon Virginia’s approval on December 15, 1791, the Bill of Rights was ratified. 

Despite the broad generality of its text, “the framers gave very little indication as to the exact meaning of the [First] Amendment” (Congdon 2004). Historical evidence from the Founding Era indicates that freedom of speech was considered to be a natural right retained by the individual that was nevertheless subject to certain restrictions for the benefit of the “public good” (Campbell 2017). Making “well-intentioned statements of one’s view[points]” was considered an inalienable right to the Founders, but evidently, the Free Speech Clause lacked the same rigor under other circumstances (Campbell 2017). Stringent anti-blasphemy laws were enforceable for more than a century after ratification (“Blasphemy and the First Amendment” 2021). Bans on profanity usage abounded (Campbell 2017). And the Alien and Sedition Acts of 1798’s prohibition against the “utter[ance]…[of] any false, scandalous [or] malicious” sentiments against the United States was repeatedly upheld by lower courts before it expired in 1801 (Congdon 2004). In spite of the First Amendment’s seemingly broad textual protections, both state legislatures and the federal government continued to implement somewhat strict restrictions on speech for decades after ratification. 

For the first 120 years after the ratification of the Bill of Rights, the U.S. Supreme Court was notably silent on the Free Speech Clause of the First Amendment; the first case testing the limits of this provision did not arrive at the Court until after World War I (Irons 2006). The idea that freedom of speech was a fundamental individual right was not made official by the Supreme Court until 1925, in a case that held the Free Speech Clause applicable to States as well as the federal government (Congdon 2004). Since then, the Court has made clear that so-called “content-based” laws, or laws that “restrict or compel speech based on its content” are “presumptively unconstitutional”; to clear such a high bar, the government must demonstrate that a law restricting freedom of speech advances a “compelling” governmental interest and represents the “least restrictive means” of securing such an interest (“Free Speech: Content Based Laws”). But unprotected speech falling outside of boundary lines of the First Amendment– including incitement, fighting words, and “true” threats– is subject to government regulation. 

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With this general background of the First Amendment in mind, a closer look at the three unprotected categories above will illustrate how both the federal and numerous state governments have balanced the interest of free speech with the countervailing desire to insulate the state and its individual members from attempted or actual violence. 

Incitement and Sedition

The Supreme Court’s first foray into this murky field came soon after the end of World War I. During the height of U.S. military involvement, the Wilson administration was determined to stamp out all opposition to American wartime participation by sponsoring private campaigns that encouraged civilians to “spy on their [fellow] neighbors” for evidence of disloyalty (Irons 2006). Congress sought to formalize this anti-dissident campaign with the passage of the Espionage Act of 1917. The Espionage Act mandated imprisonment for those who “attempt to cause insubordination, disloyalty, [or] mutiny” among military forces or for those who “willfully obstruct” American military recruitment processes (Irons 267). In Schenck v. United States (1919), the Supreme Court famously upheld the three-count conviction of Charles Schenck for violating the Espionage Act by distributing leaflets encouraging men not to register for the draft (Congdon 2004). In a pithy opinion by Justice Holmes, the Court reasoned that while Schenck’s actions “in ordinary times” would have been constitutional, the surrounding wartime effort made it so that Schenck’s speech posed an “[utter] hindrance” to the Nation’s efforts (“Schenck v. US”). Holmes set forth the following infamous test to govern future cases: whether the nature of the speech combined with surrounding circumstances creates a clear and present danger of “bringing about substantive evils that Congress has a right to prevent” (“Schenck v. US”). 

The clear-and-present-danger (CAPD) inquiry was similar in many respects to the equally misguided “bad-tendency” legal test, which once permitted governments to outright prohibit certain speech (e.g. pro-Communist sympathies) subjectively viewed as being prone to endanger “the public welfare… and the foundations of organized government [by] threaten[ing] its overthrow” (“Whitney v. CA”). But unlike the bad-tendency test, which easily morphed into a discriminatory blanket-ban on uttering certain speech at all times regardless of speaker intent, the CAPD test explicitly highlighted the importance of both speaker intent and surrounding circumstances in making a legal determination (Congdon 2004). 

After decades of sometimes reluctant application of the CAPD criterion, the Supreme Court chartered a new course in Brandenburg v. Ohio (1969). The State of Ohio had convicted Clarence Brandenburg, a leader of the Ku Klux Klan, under its criminal syndicalism statute which prohibited the advocacy of “violence[] or unlawful methods of terrorism” to accomplish political reform (“Brandenburg v. OH”). The Court invalidated Brandenburg’s conviction and struck down the criminal syndicalism law. Essentially repudiating the CAPD test as construed in Schenck, the Brandenburg Court reasoned that a state cannot prohibit the advocacy of using force except when such advocacy is “likely to incite or produce imminent lawless action” (“Brandenburg v. OH” ). Within a half-century span, the Supreme Court swapped its overbroad CAPD standard in favor of a much stricter imminent-lawless-action test that permits government interference in proscribing violent incitement only under narrow circumstances. 

Fighting Words 

In a similar vein, the Supreme Court has also ruled that so-called “fighting words” fall outside the scope of the First Amendment’s protection. The Court first enunciated this doctrine in Chaplinsky v. New Hampshire (1942). The State of New Hampshire convicted Walter Chaplinsky under a statute prohibiting the use of “offensive, derisive, or annoying” words to provoke someone on a street (Congdon 2004). After meeting local resistance to distributing Jehovah’s Witness literature, Chaplinsky called the town marshal a “damned Fascist” while being led away by police (“Chaplinsky v. NH”). The Court upheld his conviction, reasoning that Chaplinsky’s speech constitutes “fighting words” because they inflicted direct harm and incited an “immediate breach of the peace” (“Chaplinsky v. NH”).  

In subsequent years, the Court has clarified that the fighting words doctrine is not a roving license for the government to censor speech or conduct that it finds disagreeable or even offensive. In Texas v. Johnson (1989), for example, the Supreme Court invalidated the conviction of Gregory Lee Johnson for burning an American flag to protest the policies of the Reagan administration. The Court refused to classify Johnson’s expression of dissatisfaction as constituting “fighting words”, reasoning that “[n]o reasonable onlooker” would consider the burning of an American flag as being either a direct personal insult or an invitation to engage in a peace-breaching fistfight (“TX v. Johnson”). 

R.A.V. v. City of St. Paul provides another limiting example of the fighting words doctrine. Here, a teenager was convicted under a local ordinance for “placing” a “burning cross” in the front yard of a Black family. The teenager challenged the ordinance as being both overbroad and impermissibly content-based by singling out the act of cross-burning as being worthy of government-imposed sanction (“RAV v. St. Paul”). The Court agreed and struck down the ordinance, even while proceeding under the assumption that the teenager’s actions did constitute “fighting words.” The Court reasoned that by singling out and prohibiting only “fighting words” that would provoke violence on the basis of “race, color, creed, religion, or gender,” the ordinance impermissibly imposes “special prohibitions” on these speakers, as opposed to those who use “fighting words” to provoke hostility on the basis of, say, political affiliation (“RAV v. St. Paul”). While reaffirming the validity of the fighting words doctrine, the Court has endeavored to prevent governments from weaponizing it to censor disfavorable speech. 

“True” Threats 

Finally, the Supreme Court has held that the government has a ‘legitimate interest” against the proliferation of so-called “true threats” against individuals (Congdon 2004). The true threat doctrine was first formulated more than fifty years ago in Watts v. United States (1969). During a discussion group focused on police brutality at the height of the Vietnam War, 18-year-old Robert Watts complained about having received his draft classification and date for physical examination. He then proceeded to comment that, should the military ever make him “carry a rifle”, the first person whom he wishes to see is President “L.B.J.” (“Watts v. US”). The government charged him with violating a federal statute that prohibits any person from “knowingly and willfully… threaten[ing] to take the life of… the President of the United States” (“Watts v. US”). While the Court upheld the statute as a lawful exercise of a compelling governmental interest, it nevertheless invalidated Watts’ conviction. The Court reasoned that the government must prove that Watts’ sentiments constituted an actual “true ‘threat’” to the President’s life, rather than just inflamed “political hyperbole” (“Watts v. US”). Since political discourse can often be “imprecise and obnoxious”, the true threats doctrine must be limited to prevent censorship of a wide variety of permissible speech (Congdon 2004).  

The Court has also applied the true threats doctrine to conduct as well. In Virginia v. Black (2003), the Court evaluated the constitutionality of a Virginia law that designated cross-burning as prima facie (on its face) evidence of an intent to intimidate others (“VA v. Black”). In light of the association between cross-burning and brutal intimidation efforts by the Ku Klux Klan, the Court concluded that states are permitted to “outlaw cross burnings done with the intent to intimidate”. However, the Virginia statute at issue was struck down because the designation of cross-burning automatically as prima facie evidence of intimidation “blurs the line” between protected speech and proscribable intimidation, as not every individual who burns a cross is committing the act to stoke intimidation (“VA v. Black”).

Motivated by the concern that the true threats doctrine could morph into another roving license used to censor speech, the Court imposed additional limitations to the doctrine’s employment in June 2023. In Counterman v. Colorado, the Court announced a subjective-intent requirement that prosecutors must clear before prosecuting an individual for truly threatening speech  (Liptak 2023). The State of Colorado had convicted Billy Counterman under a law that prohibits one from “[r]epeatedly… mak[ing] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress” after he repeatedly sent hundreds of Facebook messages to a female singer in a stalking-like manner (“Counterman v. CO”). The Court vacated his conviction and established a subjective-intent requirement for prosecution of “true” threats. This requires a state to prove “recklessness” on behalf of the alleged perpetrator- or, in other words, prove that the “true” threats speaker “is aware that others could regard his statements as threatening violence and delivers them anyway” (“Counterman v. CO”). This new recklessness standard is emblematic of how the Court seeks to protect a state’s interest in prosecuting truly threatening statements while preventing undue encroachment of the free speech rights that are enjoyed by all. 

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Freedom of speech is undoubtedly a deeply-rooted fundamental right cherished by all Americans. The First Amendment ensures that governments may not bar even the most patently offensive speech simply because they disagree with the subject matter of the speaker’s message. At the same time, and consistent with historical evidence, the Supreme Court has qualified this right by creating narrow categories of speech liable to regulation based on the countervailing governmental interest in preventing violence among members of the collective society. As shown, the tension between these two important interests has engendered substantial litigation and volumes of discussion over the last century.  The litigants in these cases espoused eccentric and sometimes even deeply hurtful messages and ideas that could provoke anger among the targets of such speech. Even so, one thing remains clear: no matter how substantial a violence-preventive interest the government may proffer up, such an interest cannot serve as a pretext to outright eliminate the expression of even fringe views from society. 

References 

“Ashcroft v. ACLU.” 2004. Library of Congress. https://tile.loc.gov/storage-services/service/ll/usrep/usrep542/usrep542656/usrep542656.pdf.

Badamchi, Devrim Kabaskal. 2015. “Justifications of Freedom of Speech: Towards a Double-Grounded Non-Consequentialist Approach.” Philosophy and Social Criticism. https://philpapers.org/rec/BADJOF.

“Blasphemy and the First Amendment.” 2021. Harvard Law Review. https://harvardlawreview.org/print/vol-135/blasphemy-and-the-original-meaning-of-the-first-amendment/.

“Brandenburg v. OH.” 2023. National Constitution Center. https://constitutioncenter.org/the-constitution/supreme-court-case-library/brandenburg-v-ohio.

Campbell, Judd. 2017. “Natural Rights and the First Amendment.” The Yale Law Journal. https://www.yalelawjournal.org/pdf/Campbell_2hytucjq.pdf.

“Chaplinsky v. NH.” 1942. Oyez, March 9. https://www.oyez.org/cases/1940-1955/315us568.

Congdon, Amanda J. 2004. “Burned Out: The Supreme Court Strikes down Virginia’s Cross Burning Statute in Virginia v. Black.” Loyola University Chicago Law Journal. https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1255&context=luclj. 

“Counterman v. CO.” 2023. The Supreme Court of the United States, June 27. https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf.

Hamilton, Alexander. 1788. “Federalist No. 84.” The Federalist Papers, July 16. https://avalon.law.yale.edu/18th_century/fed84.asp. 

Irons, Peter. 2006. A People’s History of the Supreme Court. New York, NY: Penguin Group.

Killion, Victoria L. 2019. “The First Amendment: Categories of Speech.” Congressional Research Service, January 16. https://sgp.fas.org/crs/misc/IF11072.pdf. 

Killion, Victoria L. 2023. “Free Speech: When and Why Content-Based Laws Are Presumptively Unconstitutional.” Congressional Research Service, January 10. https://crsreports.congress.gov/product/pdf/IF/IF12308. 

Liptak, Adam. 2023. “Supreme Court Puts First Amendment Limits on Laws Banning Online Threats.” The New York Times, June 27. https://www.nytimes.com/2023/06/27/us/politics/supreme-court-first-amendment-colorado.html?login=email&auth=login-email. 

NCC Staff. 2023. “The Day the Constitution was Ratified.” National Constitution Center, July 21. https://constitutioncenter.org/blog/the-day-the-constitution-was-ratified. 

“RAV v. St. Paul.” 1992. Library of Congress, June 22. https://tile.loc.gov/storage-services/service/ll/usrep/usrep505/usrep505377/usrep505377.pdf. 

Rosen, Jeffrey and David Rubenstein. 2023. “The Declaration, the Constitution, and the Bill of Rights.” National Constitution Center. https://constitutioncenter.org/the-constitution/white-papers/the-declaration-the-constitution-and-the-bill-of-rights. 

“Schenck v. US.” 1919. Library of Congress, March 3. https://tile.loc.gov/storage-services/service/ll/usrep/usrep249/usrep249047/usrep249047.pdf. 

“TX v. Johnson.” 1989. Library of Congress, June 21. https://tile.loc.gov/storage-services/service/ll/usrep/usrep491/usrep491397/usrep491397.pdf. 

“VA v. Black.” 2003. Library of Congress, April 7. https://tile.loc.gov/storage-services/service/ll/usrep/usrep538/usrep538343/usrep538343.pdf.

“Watts v. US.” 1969. Library of Congress, April 21. https://tile.loc.gov/storage-services/service/ll/usrep/usrep394/usrep394705/usrep394705.pdf. 

“Whitney v. CA.” 1927. Library of Congress, May 16. https://tile.loc.gov/storage-services/service/ll/usrep/usrep274/usrep274357/usrep274357.pdf.