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Updated March 28, 2024
The First Amendment: Categories of Speech
The Free Speech Clause of the First Amendment prohibits
the government from “abridging the freedom of speech” but
does not define what that freedom entails. The Supreme
Court has long interpreted the Clause to greatly
circumscribe government regulation of “protected” speech
(including some forms of expressive conduct) while giving
the government greater leeway to regulate a handful of
limited categories that the Court has deemed largely
“unprotected.” This In Focus summarizes the main
categories of protected and unprotected speech in First
Amendment jurisprudence.
Introduction
The Supreme Court’s current approach to free speech is not
entirely categorical. That is, just because a law implicates
protected speech does not mean that the law automatically
violates the Free Speech Clause. Likewise, the First
Amendment may still provide grounds to challenge a law
regulating unprotected speech. Nevertheless, the category
of speech at issue can help determine what First
Amendment standards, including what level of judicial
scrutiny, a court might apply in a constitutional challenge to
the law. A reviewing court would likely apply strict
scrutiny to a law regulating protected speech on the basis of
its content—that is, its topic or message. Strict scrutiny is a
very difficult standard for the government to satisfy because
it requires proof that the law is the least restrictive means of
advancing a compelling governmental interest. If a law
regulates only protected commercial speech, however, a
court might apply intermediate scrutiny, which has no least-
restrictive-means requirement. Intermediate scrutiny still
requires the government to show, inter alia, that the law is
narrowly tailored to a substantial government interest. By
contrast, if a law regulates only unprotected speech, it
might receive no First Amendment scrutiny or the lenient
standard of rational basis review. Thus, for laws that
regulate speech or bills that propose to do so, the category
of speech involved may be an important factor in evaluating
whether a particular measure is likely to survive a First
Amendment challenge.
Protected Speech
The Supreme Court has recognized that the First
Amendment’s protections extend to individual and
collective speech “in pursuit of a wide variety of political,
social, economic, educational, religious, and cultural ends.”
Accordingly, speech is generally protected under the First
Amendment unless it falls within one of the narrow
categories of unprotected speech discussed in the next
section. Whether the Court applies strict scrutiny or a lower
form of scrutiny, however, depends on the character and
context of the speech.
Political, Ideological, and Other Forms of Non-
Commercial Speech
Apart from commercial speech, the Supreme Court has not
developed a formal hierarchy of protected speech for
purposes of applying legal scrutiny. For example, content-
based speech restrictions generally receive strict scrutiny
regardless of the topic at issue. At the same time, the Court
has long maintained that “[n]ot all speech is of equal First
Amendment importance.” Thus, the judicially ascribed
“value” of the protected speech may matter in some
circumstances.
The Court has long considered political and ideological
speech to be at the core of the First Amendment, including
speech concerning “politics, nationalism, religion, or other
matters of opinion.” This speech can take forms beyond the
written or spoken word, such as funding or symbolic acts. A
regulation of political or ideological speech generally
receives some form of heightened scrutiny, whether that be
strict scrutiny for content-based laws, intermediate scrutiny
for content-neutral laws, or the exacting scrutiny standard
often applied to campaign finance disclosure requirements.
The Court has also opined that the “Free Speech Clause
exists principally to protect discourse on public matters.”
Accordingly, the Court has distinguished between matters
of public concern or interest and matters of purely private
concern in contexts such as tort law or public employee
speech. As summarized by the Court, “[s]peech deals with
matters of public concern when it can ‘be fairly considered
as relating to any matter of political, social, or other
concern to the community,’ ... or when it is a subject of
legitimate news interest,” regardless of “the arguably
‘inappropriate or controversial character’” of the content.
Commercial Speech
Commercial speech—speech that merely proposes a
commercial transaction or relates solely to the speaker’s
and the audience’s economic interests—has historically
received less First Amendment protection than other forms
of protected speech. Under Central Hudson Gas & Electric
Corp. v. Public Service Commission of New York,
commercial speech restrictions typically receive
intermediate scrutiny if they are directed at non-misleading
speech concerning a lawful activity. Such laws are
constitutional only if they directly advance a substantial
government interest and are not broader than necessary to
serve that interest. The Court in recent years has appeared
receptive to applying a heightened level of scrutiny to laws
that single out commercial speakers for less favorable
treatment based on the content of their speech. In contrast,
courts have sometimes applied “Zauderer review”—a
standard more lenient than intermediate scrutiny but more
stringent than rational basis review—to laws requiring
disclosure of factual, uncontroversial information.
The First Amendment: Categories of Speech
https://crsreports.congress.gov
Unprotected Speech
While content-based laws are typically subject to strict
scrutiny, the Supreme Court has recognized limited
categories of speech that the government may regulate
because of their content, as long as it does so evenhandedly.
The Court generally identifies these categories as obscenity,
defamation, fraud, incitement, fighting words, true threats,
speech integral to criminal conduct, and child pornography.
The contours of these categories have changed over time,
with many having been significantly narrowed by the
Court. In addition, the Court has been disinclined to expand
upon this list, declining to recognize, for example, violent
entertainment or depictions of animal cruelty as new
categories of unprotected speech.
Obscenity
For material to be obscene, and thus unprotected under the
First Amendment, it must meet the standard set out in
Miller v. California: the material, considered as a whole,
“appeal[s] to the prurient interest in sex” (as judged by
contemporary community standards), depicts or describes
specifically defined sexual conduct in “a patently offensive
way,” and “lacks serious literary, artistic, political, or
scientific value.” Not all sexually explicit material rises to
the level of legally obscene.
Defamation
Defamation involves certain false statements of fact about a
person conveyed verbally (slander) or in writing (libel). As
a tort claim, the elements of defamation depend on the
relevant state’s law and the Supreme Court’s free speech
precedents. Although defamatory statements are considered
unprotected speech, the Court has recognized First
Amendment limits on liability in defamation cases. For
example, in cases where the statement concerns a public
official or figure, the party alleging defamation must
demonstrate that the speaker acted with “actual malice,”
that is, knowledge that the statement was false or reckless
disregard as to its truth or falsity.
Fraud
Recognizing that “some false statements are inevitable if
there is to be an open and vigorous expression of views in
public and private conversation,” the Supreme Court has
rejected a categorical First Amendment exception for false
statements. Still, the Court has stated that false statements
can form the basis for other “legally cognizable harm[s]”
such as defamation or fraud. A “properly tailored fraud
action” might require proof of “a false representation of a
material fact,” knowledge “that the representation was
false,” “intent to mislead the listener,” and reliance by or
injury to the listener. The government may also prohibit
false or inherently deceptive commercial speech, often
without triggering the intermediate scrutiny standard
applicable to most commercial speech restrictions.
Incitement
In Brandenburg v. Ohio, the Supreme Court held that the
First Amendment protects advocating the use of force or
lawbreaking “except where such advocacy is directed to
inciting or producing imminent lawless action and is likely
to incite or produce such action.” In other words, the
government may punish “statements ‘directed [at]
producing imminent lawless action,’ and likely to do so,”
but generally may not prohibit or punish “mere advocacy of
the use of force or violence.”
Fighting Words
In 1942, the Supreme Court held in Chaplinsky v. New
Hampshire that the First Amendment does not protect
“fighting words”—those “likely to provoke the average
person to retaliation, and thereby cause a breach of the
peace.” The Court has since stated, however, that “speech
cannot be restricted simply because it is upsetting or
arouses contempt.” Although the Court continues to cite
“fighting words” as an example of speech that the
government may proscribe, it has not upheld a government
action on the basis of that doctrine since Chaplinsky.
True Threats
The First Amendment does not bar the government from
prohibiting “true” threats. True threats—as distinguished
from “political hyperbole”—occur when the speaker
“means to communicate a serious expression of an intent to
commit an act of unlawful violence to a particular
individual or group of individuals.” To comply with the
First Amendment, the government must prove that the
defendant either knew or recklessly ignored—that is,
“consciously disregarded a substantial risk”—that the
defendant’s “communications would be viewed as
threatening violence.”
Speech Integral to Criminal Conduct
In general, the First Amendment affords no protection to
speech “used as an integral part of conduct in violation of a
valid criminal statute.” The Court has cited this rule as one
reason the government may prohibit traditional inchoate
offenses such as conspiracy or solicitation to commit a
crime, or offers or requests to obtain illegal material. This
category does not give the government carte blanche to
criminalize speech because of its content.
Child Sexual Abuse Material
The Supreme Court in New York v. Ferber recognized
“child pornography”—now commonly referred to as “child
sexual abuse material” or “CSAM”—as a category of
unprotected speech separate from obscenity. The Court
reasoned that the advertising and sale of such materials are
integral to the underlying criminal conduct of their
production. As defined in Ferber, this category of
proscribable speech involves materials that “visually depict
sexual conduct by children below a specified age.” Without
a depiction of an actual minor, such material might be
considered protected speech (unless legally obscene). The
Court has not squarely decided the First Amendment status
of altered images that depict identifiable minors.
Victoria L. Killion, Legislative Attorney
IF11072
The First Amendment: Categories of Speech
https://crsreports.congress.gov | IF11072 · VERSION 4 · UPDATED
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