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Freedom of speech or expression is the principle that all ought to be able to articulate their opinions and concepts, participating in free dialogue without fear of retaliation or sanction. Across the Western world, this doctrine is held at such uniquely high esteem that it is ubiquitously considered valuable. There is clearly some universal reason to support the widespread codification of free expression, as it is included in the Universal Declaration of Human Rights and has been adopted in numerous countries through constitutional and/or declarational provisions. However, while ontologically supported, the practice of free speech is seldom absolute in the United States and comes with limitations—an attached responsibility which indicates that certain restrictions are permissible. But even in this acknowledged gray zone there remains dispute regarding where exactly free speech is restricted and permitted. Especially on college campuses, the discussion of free speech grows increasingly relevant as universities continually experiment with varying levels of permissible speech.
The United States famously protects freedom of speech under the First Amendment, affirming that “Congress shall make no law […] 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.” While interpreting the boundaries of this article, the Supreme Court of the United States has recognized several categories of speech that are not protected under the law—obscenity, fraud, speech integral to criminal conduct, speech that incites imminent criminal acts, and commercial speech.
Obscenity
Obscenity is a difficult concept to define, and the Supreme Court has had difficulty in providing a precise legal definition of it throughout its history. Famously, in Jacobellis v. Ohio (1964), the struggle to articulate what exactly constitutes obscenity led Justice Potter Stewart to proclaim that the court was “faced with the task of trying to define what may be undefinable” and provide no definition beyond, “I know it when I see it.” As such, the Supreme Court began adopting “tests” to define obscenity, creating sets of guidelines to act as standards for legal responses. Throughout the 60s, the primary test for obscenity was altered and revised on several occasions as the courts found proposed tests too stringent, broad, or vague. The modern standard for obscenity cases—known as the Miller test—first appeared in Miller v. California (1973) and contains the following three prongs: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value. Granting a greater discretion to law enforcement agencies, judges and jurors on deciding what is deemed obscene, the Miller test remains the dominant test for both state and federal obscenity prosecutions, but it is not without criticism—specifically, in regards to the phrase “contemporary community standard.”
Contemporary community standards have become increasingly problematic in the age of the internet. Chief Justice Burger acknowledged a difference in the temperance of different communities and as such, posited that the Miller test did not require that “the people of Maine or Mississippi [to] accept public depiction of conduct found tolerable in Las Vegas, or New York City.” However, the internet has allowed for everything to be available anywhere at any time, resulting in instances where charges are brought against pornographic producers in Los Angeles by viewers in western Pennsylvania. Today, obscenity remains a confounding aspect of the First Amendment, being a topic that was and is difficult to define and prosecute given its fluid interpretive nature.
Fraud
Fraud—which constitutes all false speech such as slander or libel—is provided with little protection under the First Amendment. Protection is provided as the Supreme Court recognized that while false statements may add very little to the marketplace of ideas, restrictions on falsehoods could have an extraneous effect—indirectly curtailing productive speech as a result of individuals self-censoring out of a fear of prosecution. Thus, certain aspects of false speech are protected so as to ensure the inevitable natural hyperbole and falsities of debate are permissible. In this vein, New York Times Co. v. Sullivan (1964) found that falsehoods are not prosecutable under law but rather, malice—falsities made with reckless disregard for the truth—must be shown for statements to be considered criminal.
The doctrine of “reckless disregard for the truth” in cases regarding false truths has consistently been upheld in both civil and criminal cases since, acting as the framework for how cases of false speech are judged. Simultaneously, the government has refused to become the arbiter of truth given the difficulty of determining what is a false opinion. In cases such as United States v. Alvarez (2012), the State even acted to limit itself in what it defines as criminal false speech, striking down the Stolen Valor Act—a law designed to punish those lying about their own military service. The Supreme Court reasoned that since the Stolen Valor Act restricted speech on the basis of content, the restrictions outlined must be narrowly tailored and limited for the law to be considered constitutional. In articulating the plurality opinion, Justice Kennedy states that a case of stolen valor would be better addressed through the counterspeech doctrine: “the remedy for speech that is false, is speech that is true.” Such a statement highlights a general philosophy of the court—to limit the number of restrictions on free speech and providing the people or jury with the responsibility of determining the truth of cases.
Commercial Speech
Commercial speech does receive protection—albeit, not nearly the same amount as non commercial speech. Historically, the Supreme Court argued that commercial speech was not protected under the First Amendment and regulations were often imposed to protect consumers. However, with Bigelow v. Virginia (1975), Justice Harry A. Blackmun stated that “commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.” Under this precedent, commercial speech received protection to the extent that speech does not lose its protection as a result of the involvement of money, citing how political communications asking for donations are protected. At the same time, the court noted that commercial speech having some protections does not make it immune to regulation. Given that the “truth” of commercial speech is easier to distinguish compared to other forms, the regulations faced are far more objective and stringent.
In Central Hudson Gas and Electric Corp. v.. Public Service Commission (1980), the court produced a four-part test meant to determine if government regulation of commercial speech is constitutional. (1) The speech in question is determined to be illicit or not. If the speech is illicit, the government is free to constrain the speech at will. If it is not, the following three prongs must be fulfilled for the regulation to be legal: (2) the alleged governmental interest in regulating the speech must be substantial (3) the regulation must directly advance the governmental interest asserted, and (4) the regulation must not be ‘more extensive’ than it is necessary to serve the interest. The court has since held that only when every aspect of the Hudson Central test is fulfilled that regulatory laws of commercial speech may be upheld—striking down countless regulations regarding commercial speech while upholding specific cases such as those concerning casino adverts.
Speech Integral to Criminal Conduct
Speech integral to criminal conduct is an exception to free speech that has experienced a recent resurgence since 2006. First established in Giboney v.. Empire Storage & Ice Co. (1949), the Supreme Court recognized that conduct was not excused simply because it involved the exercise of peaceful First Amendment rights. As Justice Hugo L. Black stated, “it rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.” In other words, conduct considered illegal remains illegal even in cases where such conduct were carried out through language.
An aspect of speech well defined and protected by the First Amendment is speech advocating for social change—such speech often aids in illegal conduct as they call for changes of currently illegal activity. Naturally, the Giboney decision seems to be in contradiction with such principles. But, unlike other exceptions that correspond with tests, the Giboney principle is left rather vague in its definition. As such, the Giboney opinion itself has been interpreted as a loose guide for cases on speech integral to criminal conduct rather than a strict standard. Effectively, the court has reasoned that the Giboney principle is to be applied through specific case exceptions rather than specific generalized guidelines. For example, the Giboney principle is used in reasoning how child pornography does not fall under the First Amendment given that its proliferation increases criminal production, but simultaneously, the Court reasons that “not all speech which create a market for criminally obtained speech is constitutionally unprotected.” Giboney is further restricted in that speech violating a law does not equate to speech integral to criminal conduct. The Giboney principle has been cited as a precedent in an equal number of cases from the years 1949 to 2006 and from 2006 to 2013, indicating a renewed interest in this ruling despite the significant time difference between these two time periods. Thus, speech integral to criminal conduct very likely represents one of the newest grounds on which free speech is argued and will only grow in relevance in the coming years.
Speech that Incites Imminent Criminal Acts
The category of speech which incites imminent criminal acts is one of the most heavily discussed aspects of free speech exceptions. In their attempts to measure what ought to and ought not to be protected, the Supreme Court has created multiple tests meant to measure the legitimacy of restriction. In one of the most famous cases regarding free speech—Schenck v. United States (1919)—Justice Oliver Wendell Holmes Jr. conceived of the clear and present danger test. The clear and present danger test asks if the circumstances around speech create a clear and present danger which brings about the evils Congress ought to prevent, citing the example of shouting “fire” in a crowded theater.
Irrespective of precedent, the courts adopted the bad tendency test in Gitlow v. New York (1925). This test asks if the speech in question would have the tendency to incite illegal activity and if that is the case, the speech can be restricted by the government. Such a standard was extraordinarily low and allowed for the federal government to consistently rule against war-time dissent at the expense of speech. In Justice Holmes’ dissent from the ruling in Gitlow, he argues that “every idea is an incitement” and as such, the standard was far too broad to be reasonably used.
Finally, Brandenburg v. Ohio (1969) adapted the modern standard for the protection of speech that incites imminent criminal acts. The Supreme Court found that unless the speech was likely to incite “imminent lawless action,” it is protected under the First Amendment. Furthermore, the Court has since clarified that unprotected speech that results in lawless action must also lead to “imminent disorder.”
Conclusion
Freedom of speech is a living topic, ironically warranting in depth discussion at the limitations and exceptions for all speakers. On college campuses, calls for restrictions on speech in the pursuit of tolerance and campus speech codes have raised a new level of complexity to free speech discussion. It may seem attractive for administrators to simply cull speech at the slightest offense, but as the ACLU articulates, “real social change comes from hard work to address the underlying causes of inequality and bigotry, not from purified discourse.” Simultaneously, the ACLU acknowledges that the First Amendment does not protect behavior on campus “that crosses the line into targeted harassment or threats, or that creates a pervasively hostile environment for vulnerable students.” College campuses act as a microcosm of society and with the bounds and application in constant motion, the only certainty remains that exceptions and applications of free speech must always be present on some—ever fluctuating—level.