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The First Amendment: Language That Is Not Protected

The First Amendment of the United States Constitution is one of the founding principles that our country is based on.  It gives us as Americans the ability to debate and speak our minds without fear of persecution from our government.  The full text of the First Amendment reads: 

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.

Throughout our history several cases have shaped the meaning of this language and left us with essentially nine categories of speech that are not protected by the First Amendment. 

Those categories are: 

  • Obscenity - Speech or action that depicts something that is considered patently offensive based on contemporary community standards and that lacks serious literary, scientific or artistic value is not protected speech.  

  • Fighting Words - Speech that is used to inflame another and will likely incite physical retaliation are fighting words.  The test for fighting words is whether an average citizen would view the language as being inherently likely to provoke a violent response.

  • Defamation (including libel and slander) - Written or verbal defamation is not protected speech under the First Amendment.

  • Child Pornography - Speech is not protected if it depicts a minor performing sexual acts or showing their private parts. 

  • Crimes Involving Speech - The First Amendment does not protect against crimes involving speech such as perjury, extortion or harassment.

  • Violation of Copyright Rules - Intellectual property, including copyrights and trademarks are not protected speech.  A person can not pass another's copyrighted or trademarked content off as their own and expect First Amendment protection.

  • Incitement To Imminent Lawless Action - Language that is meant to incite the masses toward lawless action is not protected under the First Amendment.

  • True Threats - Threats made towards another that places the target of such speech bodily harm or death.  If a reasonable person would understand the language not to be a credible threat, that would be an exception and would be protected speech.

  • Solicitations to Commit Crimes - Offering services to commit illegal acts is not protected by the First Amendment.  Some examples would be offering services as a hit man or prostitute.

This is merely an overview and introduction into the types of speech that are not protected under the First Amendment.  There are countless resources on each of these topics to understand and unpack some of the information that is above.  

I feel that it is also important to note that the First Amendment protects us from our government creating any laws to silence us.  It does not protect us from the opinions of others around us or private organizations.  It does not allow a person to say or do anything they please without consequence.  The actions a person takes and the things that a person does can and will impact their lives. 

If you have recently run into a legal problem and need assistance, please contact The Law Office of James R. Elliott at (757) 898-4805.


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