Eleanor Finch
While the First Amendment protects the right to free speech, it does not protect all types of speech. The First Amendment states that Congress shall make no law...abridging the freedom of speech, but there are certain exceptions. These include obscenity, fraud, child pornography, speech integral to illegal conduct, and speech that incites imminent lawless action. Speech that constitutes a threat toward another that places the target of such speech in danger of bodily harm or death is also not protected.
| Characteristics | Values |
|---|---|
| Forms of speech used to commit a crime | Perjury, extortion, harassment |
| Speech that constitutes a threat | Threat of bodily harm or death |
| Speech that incites imminent lawless action | Inciting violence or encouraging the audience to commit illegal acts |
| Speech that violates intellectual property law | Copyrights, trademarks |
| Obscenity | Child pornography, child sexual abuse material |
| Fraud | False statements of fact, false advertising, defamation |
| Commercial speech | Advertising |
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What You'll Learn
Speech used to commit a crime, such as perjury, extortion or harassment
The First Amendment does not protect all types of speech. While it states that "Congress shall make no law...abridging the freedom of speech", the protections are also against state government and local public officials from making any law that abridges a person's freedom of speech.
The First Amendment also does not provide protection for forms of speech that are used to commit a crime, such as perjury, extortion or harassment. Speech is not usually protected when it constitutes a threat towards another that places the target of such speech in danger of bodily harm or death. There are certain exceptions, such as when a reasonable person would understand the language not to be a credible threat. For example, threats of mere social ostracism or boycotts are protected by the constitution.
The Supreme Court has also held that copyright laws can withstand a First Amendment challenge based on the freedom of speech. Intellectual property is protected, including copyrights and trademarks.
Other categories of speech that are given lesser or no protection by the First Amendment and therefore may be restricted include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, false statements of fact, and commercial speech such as advertising. Defamation that causes harm to reputation is a tort and also a category that is not protected as free speech.
The government may also prohibit the use of "fighting words", which is speech that is used to inflame another and that will likely incite physical retaliation. Likewise, language that is meant to incite the masses toward lawless action is not protected. This can include speech that is intended to incite violence or to encourage the audience to commit illegal acts.
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Speech that incites imminent lawless action
For example, a speaker advocating for violent revolution against the government would likely be considered speech that incites imminent lawless action and therefore would not be protected by the First Amendment. On the other hand, a speaker expressing general support for violent ideologies or abstract discussions about the morality of violence may not meet the threshold of imminence and could be protected speech.
The determination of whether speech incites imminent lawless action can be complex and context-dependent. Factors such as the speaker's intent, the likelihood of the speech leading to unlawful action, and the specific circumstances surrounding the speech may all be considered. It is important to strike a balance between protecting free speech and maintaining public order, and each case must be evaluated on its own merits.
In summary, speech that incites imminent lawless action is not protected by the First Amendment. This includes speech intended to incite violence or encourage illegal acts, as long as there is a likelihood of such action occurring. The determination of whether speech meets this threshold is context-dependent and requires a careful evaluation of the specific circumstances.
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Child sexual abuse material
While the First Amendment protects free speech, there are certain categories of speech that are given lesser or no protection and may be restricted. These include obscenity, fraud, child pornography, and child sexual abuse material. Child sexual abuse material is not protected by the First Amendment.
The First Amendment also does not provide protection for forms of speech that are used to commit a crime, such as perjury, extortion, or harassment. Speech that constitutes a threat toward another that places the target of such speech in danger of bodily harm or death is also not protected. This includes "fighting words", which are used to inflame another person and likely to incite physical retaliation. Similarly, language that is meant to incite the masses toward lawless action is not protected. This can include speech that is intended to incite violence or encourage the audience to commit illegal acts.
The Supreme Court has held that copyright laws can withstand a First Amendment challenge based on the freedom of speech. Intellectual property is protected, including copyrights and trademarks. Defamation that causes harm to reputation is also not protected as free speech.
While the First Amendment protects unpopular forms of speech, it is important to note that it does not protect all types of speech. Simply because the government cannot make a law restricting free speech does not mean that individuals are free to say anything they want.
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Speech that violates intellectual property law
While the First Amendment protects free speech, there are limitations on certain categories of speech. Speech that violates intellectual property law is not protected by the First Amendment. This includes copyright and trademark infringement. The Supreme Court has held that copyright laws can withstand a First Amendment challenge based on the freedom of speech.
Intellectual property law protects the creations of the human intellect, such as inventions, literary and artistic works, symbols, names, and images. Copyright law, for example, gives the creator of an original work exclusive rights to reproduce, distribute, and adapt their work. Trademark law, on the other hand, protects words, names, symbols, or designs that identify a company or product from being used by others in a way that may confuse consumers.
Violating intellectual property law through speech can take many forms. For example, reproducing or distributing copyrighted material without permission, such as downloading and sharing music or movies illegally. Another example is using a company's trademark in a way that suggests an affiliation or endorsement that does not exist, known as trademark infringement.
The First Amendment's lack of protection for speech that violates intellectual property law highlights the balance between free speech and the protection of intellectual property rights. It is important to note that while the First Amendment does not protect this type of speech, it also does not prohibit it outright. There may be other legal avenues to address intellectual property violations that do not involve the First Amendment.
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False statements of fact
The First Amendment does not protect all types of speech. While it states that "Congress shall make no law...abridging the freedom of speech", this does not mean that individuals are free to say anything they want.
The First Amendment also does not provide protection for forms of speech that are used to commit a crime, such as perjury, extortion or harassment. Speech is not usually protected when it constitutes a threat towards another that places the target of such speech in danger of bodily harm or death. There are certain exceptions, such as when a reasonable person would understand the language not to be a credible threat. Additionally, threats of mere social ostracism or boycotts are protected by the constitution.
Other forms of speech that are not protected by the First Amendment include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, and commercial speech such as advertising.
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Frequently asked questions
Obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, false statements of fact, and commercial speech such as advertising.
The First Amendment states that "Congress shall make no law...abridging the freedom of speech". While it states "Congress", the protections are also against state government and local public officials from making any law that abridges a person's freedom of speech.
Defamation is a false statement of fact that harms another person's reputation, including libel or slander.
Yes, unpopular forms of speech are protected by the First Amendment.
Yes, the government may prohibit the use of "fighting words", which is speech that is used to inflame another and that will likely incite physical retaliation.
