Exceptions to the 1st Amendment: What constitutes unprotected speech?
Freedom of speech does not prevent punishing conduct that intimidates, harasses,
or threatens another person, even if merely words are used. For example, if you write an
article filled with death threats and ethnic slurs against an administrator or teacher, you better
get yourself a good lawyer.
The Supreme Court has recognized several limited exceptions to the First Amendment. In
Chaplinsky v. New Hampshire (1942), the Court held that so-called "fighting
words...which by their very utterance inflict injury or tend to incite an immediate
breach
of the peace," are not protected. This decision was based on the fact that fighting words
are of "slight social value as a step to truth."
Anything obscene or false (See my Libel, Obscenity, and
Slander section) is also not protected speech.
Profanity, as a general rule, falls outside the scope of protection, unless in its
given context, communicates important, protected speech. For example, a really pissed off
kid wore a jacket into a courthouse with the words "Fuck the Draft" written on the back
during the Vietnam War. In
Cohen v. California (1971), the Court held that because he conveyed an emotive
political message, it was okay to use "fuck." While Supreme Court justices have commented
that profanity can indeed have some value in the marketplace of ideas, their dicta,
or written rants in a judicial opinion, hold less weight than actual case law.
So basically, if you just hurl insults at
administrators and call them "fat fucking pieces of shit" for an entire paragraph absent
of any real political or substantial context, don't expect the First Amendment to back you up.
Defaming or saying/writing false statements on someone's character is not protected. In
my own opinion, it detracts from your writing if you curse too much, you look immature and
like the dumb high school kid you really are, and you won't gain any respect from faculty.
So in the interest
of good taste, try to keep bad fucking words like..you know.. "fuck" to a
fucking minimum.
Sedition, or advocating the overthrow of the government, has traditionally fallen
outside the scope of
the First Amendment in times of war. Since 1919 with Schenk v. U.S. where a man was
prosecuted for
passing out anti-draft pamphlets, Congress has, on occasion, punished those who did not
agree with U.S. foreign policy, particularly during times of war. The courts often deferred
to the government's assertion of a "breach of national security." Socialists, anarchists,
communists, and members of left wing labor
movements continued to be prosecuted by the States well into the late 1950's with Dennis
v. U.S. (1951) and Yates v. U.S. (1957). If you look at us today with the
aftermath of September 11th, the government is slowly moving in that direction once again in
the interest of national security. The courts have continually struggled with the fine line
between speech advocating political change, and speech that incites immediate lawless
action against the government. Personally, if I were you, I would be a
little careful right now with what you say. At least, until Bush is out of
office.
But as a general rule, political speech may not be abridged
on the basis of
content. Government can't impose
special prohibitions against those who wish to speak on disfavored subjects, even if the
content is verbally assaultive and has an emotionally painful impact. Speech can be abridged
only when it:
1. Physically interferes with other legitimate activities, i.e. you and several
others throw yourselves in the middle of a huge parade yelling about the war against
Iraq, and as a result, marching horses freak out, and little kids are trampled to death.
2. When it is thrust upon "captive" or unwilling listeners, i.e. harassing shoppers
outside a supermarket and chasing them to their cars if they don't agree with your political
views.
3. When it constitutes a direct incitement to unlawful behavior likely to occur, i.e.
you tell everyone in article that you have an arsenal of bombs, and need volunteers to
wield a crusade against the school establishment.
4. In the absence of these conditions, which concern action rather than
speech, political expression in a public forum enjoys nearly absolute protection
regardless of the intended negative impact of the speaker. Need an example? In Village of
Skokie v. National Socialist Party (1977), the courts ruled in favor of allowing a NAZI
party to meet in a predominantly Jewish neighborhood where many residents were survivors of
the death camps.