Eleanor Finch
The First Amendment protects the right to free speech, but there are limits to this protection. The Supreme Court has established certain categories of speech that are not protected by the First Amendment, including 'fighting words' and 'true threats'. The Court has clarified that speech is only unprotected if it communicates a serious intent to commit an act of violence against a particular individual or group of individuals. This means that the same sentence said in different contexts would yield different results. The Court has also invalidated certain restrictions on unprotected speech if they extend to protected speech or involve content-based distinctions.
| Characteristics | Values |
|---|---|
| Constitutional right to free speech | Protects against government suppression of ideas |
| Categories of unprotected speech | Fighting words, true threats |
| Example of unprotected speech | Chaplinsky v. New Hampshire (1942) |
| Example of protected speech | Watts v. United States (1969) |
| Example of protected speech | Cross-burnings without intent to intimidate |
| Example of unprotected speech | Counterman v. Colorado (2023) |
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What You'll Learn
Fighting words
The First Amendment does not protect fighting words. In 1942, the Supreme Court decided in *Chaplinsky v. New Hampshire* that fighting words are not protected by the First Amendment. The Court reviewed a conviction under state law that criminalised the use of 'fighting words', defined as speech 'likely to provoke the average person to retaliation, and thereby cause a breach of the peace'.
The Court upheld the conviction and the statute, which it found to be sufficiently narrowly tailored. This means that the state has greater leeway to regulate and penalise unprotected speech, such as fighting words. However, not all restrictions on unprotected speech are constitutional, particularly if they extend to protected speech or involve content-based distinctions.
The Supreme Court has clarified that the speaker crosses beyond the First Amendment's protection when they know of or consciously disregard a substantial risk that their communications will be viewed as threatening violence. This was demonstrated in *Counterman v. Colorado* (2023), where Billy Raymond Counterman was convicted of stalking for statements he posted to Facebook. The Court explained that the state used the wrong standard when determining whether Counterman's statements were true threats.
True threats are distinguishable from heated rhetoric. For example, in *Watts v. United States* (1969), the First Amendment protected a man's statement that 'If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.' after being drafted to serve in the Vietnam War. The statement was not a true expression of intent to kill the president and was therefore protected speech.
Only speech that communicates a serious intent to commit an act of violence against a particular individual or group of specific individuals is no longer protected under the First Amendment. This speech must be more than hyperbole, jest, or emotional rhetoric, and the speaker must have the means, opportunity, and intent of carrying out the threat. Whether something constitutes a true threat requires a close examination of the intent and impact of the statement.
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True threats
The First Amendment does not protect 'true threats', which are distinguishable from heated rhetoric. For example, in Watts v. United States (1969), the First Amendment protected a man's statement that "If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.", as the statement was not a true expression of intent to kill the president.
In Counterman v. Colorado (2023), the Court clarified the intent requirement for true threats. Billy Raymond Counterman was convicted of stalking for statements he posted to Facebook. The Court explained that the state used the wrong standard when determining whether Counterman's statements were true threats.
Whether or not something constitutes a true threat requires a close examination of the intent and impact of the statement, as the same sentence said in different contexts would yield different results.
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Intent to intimidate
The Supreme Court has established certain categories of speech and associated protections because of their content. Fighting words and true threats are two such unprotected categories.
In 1942, the Court decided in *Chaplinsky v New Hampshire* that the First Amendment doesn't protect fighting words. The law defined fighting words as speech "likely to provoke the average person to retaliation, and thereby cause a breach of the peace".
In *Counterman v Colorado (2023)*, the Court clarified the intent requirement for true threats. Billy Raymond Counterman was convicted of stalking for statements he posted to Facebook. The Court explained that the state used the wrong standard when determining whether Counterman's statements were true threats. The speaker crosses beyond the First Amendment's protection when he knows of or "consciously disregards a substantial risk that his communications would be viewed as threatening violence".
True threats are distinguishable from heated rhetoric. For example, the Court held in *Watts v United States (1969)* that the First Amendment protected a man's statement that "If they ever make me carry a rifle the first man I want to get in my sights is L. B. J." after being drafted to serve in the Vietnam War, as the statement was not a true expression of intent to kill the president.
While any form of hateful speech may feel threatening, only speech that communicates a serious intent to commit an act of violence against the recipient is no longer protected under the First Amendment. This speech must be directed toward a particular individual or a group of specific individuals and does not include hyperbole, jest, or emotional rhetoric. In addition, the speaker must have the means, opportunity, and intent of carrying the threat out and must intend or act with reckless disregard of whether the statement would be understood as a genuine threat. Whether or not something constitutes a true threat requires a close examination of the intent and impact of the statement, as the same sentence said in different contexts would yield different results.
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Hate speech
While the First Amendment protects the right to free speech, there are some categories of speech that are not protected. These include fighting words and true threats. The Supreme Court has clarified that the First Amendment does not protect speech that communicates a serious intent to commit an act of violence against a particular individual or group of individuals. This means that hate speech, which may feel threatening, is only unprotected if it meets these specific criteria.
In the case of *Chaplinsky v. New Hampshire* in 1942, the Court unanimously decided that the First Amendment does not protect fighting words. Fighting words are defined as speech "likely to provoke the average person to retaliation, and thereby cause a breach of the peace." The Court upheld the conviction and found that the statute was sufficiently narrowly tailored.
In another case, *Counterman v. Colorado* (2023), the Court clarified the intent requirement for true threats. Billy Raymond Counterman was convicted of stalking for statements he posted on Facebook. The Court explained that the state used the wrong standard when determining whether Counterman's statements were true threats. The speaker must cross beyond the First Amendment's protection by knowing of or consciously disregarding the risk that their communications would be viewed as threatening violence.
It is important to note that not all restrictions on unprotected speech are constitutional. The Court has developed legal standards and frameworks for determining whether a government restriction on speech violates the First Amendment. These standards typically weigh the government interest served by the restriction against the First Amendment freedoms burdened by it.
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Content-based restrictions
In 1942, the Court decided in *Chaplinsky v. New Hampshire* that the First Amendment does not protect fighting words. The law defined fighting words as speech "likely to provoke the average person to retaliation, and thereby cause a breach of the peace". The Court upheld the conviction and the statute, finding it to be sufficiently narrowly tailored.
In *Counterman v. Colorado* (2023), the Court clarified the intent requirement for true threats. Billy Raymond Counterman was convicted of stalking for statements he posted to Facebook. The Court explained that the state used the wrong standard when determining whether Counterman's statements were true threats. The speaker crosses beyond the First Amendment's protection when they know of or "consciously disregard a substantial risk that his communications would be viewed as threatening violence".
True threats are distinguishable from heated rhetoric. For example, in *Watts v. United States* (1969), the First Amendment protected a man's statement that "If they ever make me carry a rifle the first man I want to get in my sights is L. B. J." after being drafted to serve in the Vietnam War. The statement was not a true expression of intent to kill the president.
To be considered a true threat, the speech must communicate a serious intent to commit an act of violence against the recipient. It must be directed toward a particular individual or group of specific individuals and does not include hyperbole, jest, or emotional rhetoric. The speaker must have the means, opportunity, and intent to carry out the threat and must intend or act with reckless disregard of whether the statement would be understood as a genuine threat.
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Frequently asked questions
No, the First Amendment does not protect threatening speech. The Supreme Court has established that fighting words and true threats are two categories of speech that are not protected.
A true threat is speech that communicates a serious intent to commit an act of violence against a particular individual or group of individuals. The speaker must have the means, opportunity, and intent to carry out the threat.
While any form of hateful speech may feel threatening, only true threats are unprotected by the First Amendment. Hate speech that does not communicate a serious intent to commit violence is protected.
Yes, the government can restrict threatening speech. The Court has developed legal standards and frameworks for determining whether a government restriction on speech violates the First Amendment. These standards typically weigh the government interest served by the restriction against the First Amendment freedoms burdened by it.
