1A: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Like many Americans, I grew up memorizing the First Amendment as freedom of religion, speech, press, peaceful assembly, and petition. It wasn’t until I was taking pre-law classes in college that I learned that there is so much not covered by the First Amendment. Here, you will find links to various court cases that are examples of things not covered by the First Amendment relating to speech, as well as why these actions were not covered. 

The following types of speech are not covered by the First Amendment: obscenity, fighting words, defamation (libel/slander), child pornography, perjury, blackmail, incitements to imminent lawless action, and true threats. 

Obscenity: Miller v. California (1973)

Guidelines for determining whether something is obscene: “whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California refers to unsolicited brochures containing sexually explicit photographs being mailed to California residents. Miller was convicted under a California law that prohibits obscene material distribution. 

Fighting Words: Chaplinksy v. New Hampshire (1942)  

Chaplinsky was convicted for referring to the City Marshall of Rochester New Hampshire as a “damn racketeer” and “damn fascist” during a public disturbance. The court upheld a state law that restricted “offensive, derisive, or annoying” speech in public. The court defined offensive as “what men of common intelligence would understand would be words to cause an average address to fight. 

Defamation (libel/slander): New York Times Co. v. Sullivan (1964)

Sullivan was a City Commissioner in Montgomery, Alabama who sued the New York Times because “defamatory statements in paid advertising” were published that described mistreatment of African American students protesting segregation by the police under Sullivan. The jury awarded damages to Sullivan because of the false advertising in the ads. Public figures must prove “actual malice” (intent to hurt the party in question by spreading false information) in publishing advertisements, or libel actions may be taken.

Child Pornography: Osborne v. Ohio (1990)

Police found photographs of nude male adolescence posted in sexual positions in Osborne’s home. The court held that the First Amendment allows states to outlaw possession of child pornography. 

Perjury: Oregon v. Hass (1975)

Perjury is defined as “the offense of willfully telling an untruth in a court after having taken an oath or affirmation.” After being arrested and given his Miranda Rights, Hass told the police that he took two bicycles, returned one, and bid the other, after asking to speak to his attorney. At trial in Oregon state court, Hass testified as innocent, but the officer repeated the information he had given them in the car. The Supreme Court held that Hass’ statements made in the vehicle could be used to impeach Hass’ credibility by the use of either of his conflicting statements. 

Blackmail: United States v. Nardello (1969)

Blackmail is defined as a threat to do something that would cause a person to suffer embarrassment or financial loss, unless that person meets certain demands. This includes revealing private information, sensitive information, or accusing them falsely of a crime. Blackmail laws differ from state to state. This lawsuit is regarding a blackmail law that was overturned because blackmail and extortion originally only applied to government officials. 

Incitements to Imminent Lawless Action: Brandenburg v. Ohio (1969)

In this case, Brandenburg was a member of the KKK. He was convicted by Ohio courts after a new report broadcast speeches of him advocating crime or methods of terrorism. This conviction was upheld by the Supreme Court and resulted in the Brandenburg test, which was established to determine when speech advocating for illegal action can be restricted and not covered by 1A. 

True Threats: Virginia v. Black (2003)

In another KKK involved case, a cross was burnt by the KKK in the yard of an African-American neighbor. The Supreme Court held that states may criminalize cross burning as long as prosecutors had to prove the act was intended as a threat and not a form of symbolic expression. True threats are statements where the speaker expresses intent to commit an act of violence to the individual or group, such as speaking a direct threat that makes them fear bodily harm or death. 

Freedom of speech does not mean freedom of consequence. These are a few instances where types of speech are not covered by the first amendment. If you’re interested in researching more, you can find case briefs here of Supreme Court cases. Also, the Supreme Court website shows other forms of speech that are covered and not covered pertaining to school-aged kids.

Whitney E
CABINET

Whitney is a senior majoring in communication at Mississippi State University. When she's not preparing for law school, you can find her online shopping or planning a trip to Disney World. She loves Ronald Reagan, traveling, and all things preppy.