Full Transcript - Ultimate Constitutional Law Guide To Unprotected Speech
Full Transcript - Ultimate Constitutional Law Guide To Unprotected Speech
Please note:
Clips used in this episode that lose context or meaning when transcribed have been included where they appeared in this original podcast episode
Watch Episode #57 - Ultimate Constitutional Law Guide To Unprotected Speech
Episode #57 - Full Transcript
Today on Legalese, we will be discussing Categories of Unprotected Speech
Greetings. Before I forget, I have an update and also a question I want to put to all you lovely Legalese subscribers out there. I don’t want to eat up several minutes talking about it now during the introduction, so please make a point to watch this through to the very end, after I sign off Where I’ll stick in that update (or timestamp description)…. Anyways welcome back to Legalese…
I recently asked you guys if you would like a video discussing the forms of speech which are not protected by the first amendment.
A number of you replied with a very enthusiastic, “Yeah, I guess so” and I am nothing if not the kind of man dedicated to giving the people what they want. Or, at the very least, a man dedicated to giving some of the people the thing I suggested they want.
Though this is by no means intentional on my part, I think this is an especially appropriate subject to be discussing at present.
Both major political parties currently seem to be declaring themselves the defenders of the true spirit of freedom of speech, while their actions suggest their conception of what freedom of speech means is only those things which it is personally advantageous for them to defend while simultaneously suggesting it is only those things which it would be personally advantageous for them to censor that just so happen to lie outside the categories of protected speech.
But even beyond the problems caused by intentional misinterpretation, biased descriptions and self-serving manipulation, there is an intrinsic and unavoidable cause of misinformation. The few select limits on speech have been carefully honed over decades of case law into a handful of narrow categories of speech that the First Amendment does not protect. Because of this winding legal landscape, there are many misconceptions as to what actually constitutes unprotected speech.
Tangentially, I want to add that there is often a conception that because Constitutional law evolves over time that must mean it’s always drifting further away from the original understanding of the framers and ratifiers who gave the document legal force. While that certainly can occur, and as I’ve outlined in my book about the implied powers doctrine, that evolution can have massive negative consequences. That detrimental change happens far less than people assume. Con Law is the product of one body, the Supreme Court and most evolution is merely constitutional construction. That is, applying constitutional principles to relevant issues that have simply never arisen before.
Bear in mind, the Court never directly addressed the 2A until 2008. But Heller and McDonald clarified its original meaning was the protection of an individual and not a collective right.
To minimize the possibility of such intentional or unintentional misconceptions arising from this discussion, I have consciously avoided incorporating information based on personal opinions. including my own opinion. We are going to be looking solely to established first amendment precedent in constitutional law. Every precedent will be rooted in established case law and every definition, doctrine and principle will be explained through a textual analysis of that case law..
I don’t necessarily agree with every jot and tittle of every established precedent I will discuss here, and perhaps in a future video I can discuss the many things I believe the court gets right and the small number of exceptions where I hold their construction departs from the amendment’s original meaning.. But today I want to do my best to give you the information you would need to successfully defend your natural and individual rights of free speech, expression and conduct within our existing legal and constitutional framework.
As always, on the show notes page you will finds links to all kinds of cool stuff, including the full case briefs of every decision we discuss and all kinds of additional information that I believe anyone wanting to learn more about this topic would find useful, and I strongly encourage everyone to, at the very least, go and read the full case briefs of the landmark decisions that define unprotected speech.
But first I want to address a potentially vicious rumor that may have been spreading since my First Amendment Police Defendants episode. Because I said there were five forms of unprotected speech
Of course, in actuality the true number of classes of unprotected speech is not five, but seven. And I assume there were probably some people listening who picked up on that at the time. So I wanted to get ahead of this problem before any vicious rumors may start to spread by people who may be inclined to make assumptions about why I might have said five. I can imagine that people who caught that may have jumped to conclusions such as, assuming at the time I had already started working on an episode discussing the five rights protected by the first amendment and with that topic on my mind I got it discombobulated and mixed up the five rights protected in the first amendment with the seven forms of speech that are not protected by the first amendment..
Any such suggestions that I was confused or mistaken are incorrect. I simply reject the white man’s cultural appropriation of Arabic numerals as a manifestation of digit colonialism as well as the institutionalized bigotry inherent in the deeply racist base-10 number system that the white man has imposed on people of color to maintain a mindset of oppression through white arithmetic supremacy, and numero-misogyny.
I especially, emphatically reject any use of the number 7 for being the most racist number of all racist numbers in this institutionally racist number system... And if you don’t believe the number 7 is especially racist…
…Think again
Anyways, I say that to say this… To borrow a term from woke culture my “lived experience” which is to say my subjective truth, which is to say the bullshit I tell myself and others despite my awareness its untrue, because it makes me feel safer– Is that any perception that I misspoke when I previously mentioned five unprotected classes of speech is not evidence I was wrong, its evidence anyone who says I was wrong is a bigot.
That said, let’s move on to unprotected categories of speech.
Incitement
In Brandenburg v. Ohio (1969), the Supreme Court of the United States held the First Amendment does not protect speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Mere advocacy of lawbreaking or violence remains protected speech as long as it is not intended to and likely to provoke immediate unlawful action.
These definitions place emphasis on the actual intent and seriousness of the threat. This allows the authorities to take things like bomb threats seriously while also keeping the government from punishing clearly hyperbolic expression, such as the infamous photo of Kathy Griffin holding a depiction of Donald Trump’s head or someone yelling “I’m gonna kill you!” at another Fortnite player. It’s important to keep in mind that these definitions envision speech or conduct aimed at a specific individual or set of individuals. They do not include more generalized comments.
Legal Principle at Issue: Whether an Ohio law prohibiting speech that advocates for illegal activities violated Brandenburg's First Amendment rights.
Facts/Syllabus: Brandenburg was convicted of violating a criminal law that prohibited speech that advocates crime, sabotage, violence, and other similar acts after he spoke at a KKK rally. The Supreme Court found that the law infringed on Brandenburg's First Amendment rights, and created the imminent lawless action test. In order for speech to fall out of First Amendment protection, it must 1) be directed at producing imminent lawless action and 2) it is likely to produce such action.
The Court found Brandenburg’s speech did not meet this test and his conviction was reversed
Importance of Case: Speech is not constitutionally protected if 1) it is directed at producing imminent lawless action and 2) it is likely to produce such action.
True Threats
In Virginia v. Black (2003), the Supreme Court defined true threats as “those statements where 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.” The Court clarified that the speaker “need not actually intend to carry out the threat.”
Legal Principle at Issue: Whether a statute banning cross-burning with the intent to intimidate violates the First Amendment.
Facts/Syllabus: This case arose out of two separate cross-burning incidents. In May 1998, Richard J. Elliott and Jonathan O’Mara burned a cross in the yard of James Jubilee, Elliott’s black neighbor. In August 1998, Barry Elton Black led a Ku Klux Klan rally on private property with the consent of the property’s owner. Black burned a cross at the rally, which frightened a relative of the property owner who watched from a nearby house. Prosecutors charged all three men with violating Virginia’s cross-burning statute, which provides: “It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or to cause to be burned, a cross on the property of another, a highway or other public place.”
All three men lost their criminal cases before the trial court. The court of appeals affirmed the convictions of the three men in two separate cases. The appeals court reasoned that the statute only proscribes true threats, a category of expression not protected by the First Amendment. The appeals court also determined that the burning of the cross is a form of fighting words, another category of speech not protected by the First Amendment. On appeal, the Virginia Supreme Court consolidated the two cases. In a 4-3 decision, the state supreme court reversed, finding the statute violated the First Amendment. The majority reasoned that the statute regulated speech based on hostility to the underlying message of cross burning.
Action: The Supreme Court of the United States upheld the portion of the statute which bans burning a cross in public with the intent to intimidate but invalidated the provision that treated all cross-burnings as evidence for intent to intimidate.
Importance of Case: The Supreme Court found the bulk of the statute in line with R.A.V. v. City of Saint Paul (1992), which permits the state to limit the worst kinds of a particular form of proscribable speech, like intimidation and true threats, as long as it is done without regard to content or viewpoint. The Court in Black said that although some forms of cross burning may be considered “intimidating” when carried out with the intent to communicate a threat of physical harm to a specific target, not all cross-burning may automatically be considered as evidencing such an intent to intimidate. The Court defined true threats as “statements where 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.” Further, the Court held that speech loses First Amendment protection and becomes intimidation when it is “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”
True threats are distinguishable from heated rhetoric. For example, the Court held in Watts v. United States (1969) that the First Amendment protected a man’s statement — after being drafted to serve in the Vietnam War — that “[i]f they ever make me carry a rifle the first man I want to get in my sights is L. B. J.,” as the statement was not a true expression of intent to kill the president.
Fighting Words
If you’re anything like me, you went through the majority of your life thinking “fighting words” was a phrase created by Mel Blanc in Looney Tunes, because it sounded like a hilarious and fitting catch phrase for Yosemite Sam .
When it turns out this is a very real term of art employed in constitutional law
Fighting words are those that, by the very act of being spoken, tend to incite the individual to whom they are addressed to respond violently and to do so immediately, with no time to think things over. The fighting words category is an exceedingly limited classification of speech, encompassing only face-to-face communications that would obviously provoke an immediate and violent reaction from the average listener.
While The term fighting words describes words that when uttered inflict injury or tend to incite an immediate breach of the peace. The fighting words doctrine, in United States constitutional law, is a limitation to freedom of speech as protected by the First Amendment to the United States Constitution.
In 1942, the U.S. Supreme Court established the doctrine by a 9–0 decision in Chaplinsky v. New Hampshire. It held that "insulting or 'fighting words', those that by their very utterance inflict injury or tend to incite an immediate breach of the peace" are among the "well-defined and narrowly limited classes of speech the prevention and punishment of [which] … have never been thought to raise any constitutional problem."
Chaplinsky decision
Chaplinsky, a Jehovah's Witness, had purportedly told a New Hampshire town marshal who was attempting to prevent him from preaching that he was "a damned racketeer" and "a damned fascist" and was arrested. The court upheld the arrest and wrote in its decision that
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.[1]
The Court has continued to uphold the doctrine but also steadily narrowed the grounds on which fighting words are held to apply. In 1972, the Court held that offensive and insulting language, even when directed at specific individuals, is not fighting words:
To elucidate the modern distinction of what does and does not meet the standard of fighting words, I want to look at two recent cases that, on the surface appear remarkably similar. Yet in one the Court concluded the utterance was not Fighting words, while the other utterance was deemed to be fighting words. Its only on closer inspection that this distinction becomes clear. The Devil, as they say, is in the details. The first case is one that I was dying to cover back in June when the Court’s opinion was filed because of how ridiculous the whole thing is. I didn’t have enough to say to justify a standalone episode, so I’m excited to introduce you all to State v Gibson, or as I call it “People v the Redheaded Bitch”
Video: Ginger Kids Have No Souls
In State v Gibson, the Ohio District Court held that a man calling his male neighbor a "Redheaded Bitch"
Video: No cure for Gingervitis
Wasn't Constitutionally Unprotected Fighting Words. However, In contrast to State v. Gibson, a similar case that also came before an Ohio Court of Appeals in 2020 called City of Columbus v. Fabich[2]. Would hold that a man calling his black neighbor “nigger” were fighting words.
In both instances, a verbal altercation between neighbors escalated to physical violence as a direct result of the disparaging epithets that were used. Both cases turned on whether or not the epithets that were uttered constitute “fighting words” sufficient to result in a conviction for disorderly conduct. So how can we account for such disparate outcomes? Lets start with the relevant facts and circumstances in the Gibson case.
To begin, the court considered contemporary standards, Gibson's epithet was of a milder variety compared to other cases where more-egregious expletives were not found to be "fighting words."
Video: Vile Disgusting Curse
Indeed, courts have found terms far more loathsome than used by Gibson in this case not to be "fighting words." See, e.g., State v. Dotson (Ohio. App. 1999) (under the circumstances, it was not "fighting words" to call various police officers "motherfuckers"); City of Chillicothe v. Lowery (Ohio App. 1998) (saying "fuck you" to police officers and repeatedly calling them "motherfuckers" did not constitute "fighting words"); see also State v. Baccala (Conn. 2017) (calling a store manager a "fat ugly bitch," and worse, and saying, "fuck you, you're not a manager," were not "fighting words" under facts of the case); People in the Interest of R.C. (Colo. App. 2016) (rejecting an argument that the term "cocksucker," "by its mere utterance qualifies as fighting words").[3]
In Gibson the Court would go on to further clarify:
"[N]o matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or opprobrious spoken words may seem to be, their utterance may not be made a crime unless they are fighting words… Fighting words [are those that] by their very utterance inflict injury or are likely to provoke the average person to an immediate retaliatory breach of the peace."[4]
Gibson argues that the trial court erred by denying his Ohio. Crim. R. 29 motion for acquittal, in accordance with Crim. Proc.Rule 29(A). Gibson maintains that to convict him of disorderly conduct, the State needed to introduce evidence sufficient to prove he insulted Foley with constitutionally unprotected "fighting words." According to Gibson, the State failed to do so, and the trial court should therefore have granted his motion for a judgment of acquittal.[5]
Gibson’s assignment of error was sustained. Having found error prejudicial to Gibson in the particulars assigned and argued in his first assignment of error, [the court] reverses the judgement of the trial court. Concluding Gibson’s conviction is not supported by sufficient evidence, we remand case to the trial court to vacate.[6]
Fabich
Ohio appeals court upheld the ethnic-intimidation and disorderly conduct convictions of a Columbus, Ohio, man who uttered the word nigger repeatedly at a black neighbor.
Brown contended that Fabich, unleashed a torrent of profane and racial slurs at Brown. Brown filed a complaint with the police, who charged Fabich with ethnic intimidation and disorderly conduct. On appeal, Fabich challenged the constitutionality of both ordinances.
Fabich contended that this ordinance was unconstitutional because it amounted to impermissible content- and viewpoint-based discrimination against offensive speech. However, the appeals court said the ordinance “punishes a bigoted motive for employing fighting words against Brown, without regard to what those words were.” The court said that “it is permissible for the government to add to the punishment of crimes where the criminal acts were committed due to a repugnant or socially destabilizing (for example, racist) motive.”
The court then addressed the ethnic-intimidation ordinance, which provides that prosecutors may add an enhancement offense if the predicate offense involved a victim selected for his or her race, color, religion, sex, sexual orientation, gender, gender identity, national origin, or age. In this case, disorderly conduct was the predicate, or underlying, offense.
Fabich may be the very best example of a Court applying what I call the Carlin Doctrine.
Obscenity
Establishing obscenity is determined by applying the Miller [balancing] Test. It comes from Miller v. California (1973), where the Supreme Court outlined a three-prong standard that material must meet in order to be considered legally obscene:
Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the “prurient interest” (an inordinate interest in sex);
Whether the work depicts or describes, in a patently offensive way, sexual conduct;
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Note: This third prong is considered an “objective” standard and is judged by reference to national rather than community standards.)
If all three prongs are met, the material enjoys virtually no First Amendment protection in the jurisdiction where it is adjudicated obscene, and the government may regulate its transmission, communication, or sale.
Defamation
The First Amendment protects false speech, with very limited exceptions, including defamation and fraud. Defamation is a false statement of fact that
Is communicated to a third party;
Is made with the requisite guilty state of mind; and
Harms an individual’s reputation.
To be defamatory, a statement must be an assertion of fact (rather than mere opinion or rhetorical hyperbole) and capable of being proven false. As to state of mind, if the person allegedly defamed is a public figure, he or she must prove “actual malice” — namely, that the speaker made the statement either with knowledge of its falsity or with reckless disregard for the truth. A non-public figure need only prove that the speaker was negligent in making the false statement.
Fraud and Perjury
While, again, the First Amendment makes no categorical exception for false or misleading speech, certain types of fraudulent statements fall outside its protection. The government generally can impose liability for false advertising or on speakers who knowingly make factual misrepresentations to obtain money or some other material benefit (such as employment). Prohibitions on perjury — knowingly giving false testimony under oath — also are constitutional.
Speech Integral to Criminal Conduct
In Giboney v. Empire Storage & Ice Co. (1949), the Supreme Court held the First Amendment affords no protection to “speech or writing used as an integral part of conduct in violation of a valid criminal statute.” A robber’s demand at gunpoint that you hand over your money is not protected speech. Nor is extortion, criminal conspiracy, or solicitation to commit a specific crime. Abstract advocacy of lawbreaking remains protected speech.
What about 'hate speech' and harassment? Is that protected speech?
Some readers may wonder why “hate speech” and harassment are not in the list of categories of unprotected speech. ACKCHYUALLY Contrary to popular misconception, there is no First Amendment exception for so-called hate speech. The First Amendment fully protects speech that is unpopular or that some may find downright offensive.
The Supreme Court has held the First Amendment allows you to wear a jacket that says “Fuck the Draft” in a public building (Cohen v. California (1971)), protest a soldier’s funeral with a sign that says “Thank God for Dead Soldiers” (Snyder v. Phelps (2011)), burn the American flag in protest (Texas v. Johnson (1989) and United States v. Eichman (1990)), and give a racially charged speech to a restless crowd (Terminiello v. Chicago (1949)).
In Texas v. Johnson (1989), the Supreme Court stated the general rule regarding protected speech when it held the “government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable.” Federal courts have consistently followed this holding when applying the First Amendment.
There is also no general First Amendment exception for “harassment,” and courts have struck down anti-harassment regulations and laws for overbroad language reaching a substantial amount of protected speech. There are a few location-based exceptions, such as in education and workplace safety regulations with narrowly tailored definitions that give government authority to punish behavior that truly impairs the educational or workplace environment. In Davis v Monroe County Board of Education the Supreme Court held that such harassment must be targeted, discriminatory and part of a larger pattern of harassing behavior.[7] in short, isolated pure speech or expression is highly unlikely to constitute harassment on its own.
Update: At the start of this video I gave you a heads up I has an update and question to ask viewers. It has to do with my homepage LegalesePodcast.com
Initially when I created the page a few months ago I just made it a very basic, mostly static page with links and contact information, episode archives and a few other things. But the traffic to my website has spiked recently, like to an almost ridiculous degree. Since this page is attracting so many people I feel like I should do more with it than just have a basic unchanging page with bare bones content. So if you have been to my website and you have any suggestions of things that you would like to see me add, or things you would like me to keep updated, or any other suggestions that would make the website a more interesting and useful and inviting place for people interested in my content, such as yourself, I would very much appreciate if you would take a few minutes to get in contact with me and let me know if you have any such suggestions.
You can leave a comment on this video if you please, alternately, on the website I have a contact form you can fill out, and you can always email me directly. My email address for podcast, video and article related topics is bob@legaleseshow.com
And even if you haven’t been to the website yet, but you would be kind enough to head over there for a few minutes to peruse and share your thoughts with me about changes or updates you would like to see, that would also be very much appreciated. Thanks to everyone for doing what you do to help me get my content out there, to reach even more people and to engage with you all in an even richer, deeper, more comprehensive discussion about constitutional law, originalism/textualism, jurisprudence and libertarian politics. I truly do appreciate each and every one of you out there who follow my work, chat with me and share the show with others.
Carthago Delenda Est
[1] Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)
[2] Columbus v. Fabich, 166 NE 3d 101 - Ohio: Court of Appeals, 10th Appellate Dist. 2020
[3] State v. Gibson, 2023 Ohio 2202, p.10.
[4] State, at p.7-8.
[5] Rule 29 - Motion for Acquittal, Ohio Crim. R. 29.
[6] Id. at 13-14
[7] Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 633 (1999).