United States free speech exceptions
[7] Along with communicative restrictions, less protection is afforded to uninhibited speech when the government acts as subsidizer or speaker, is an employer, controls education, or regulates the mail, airwaves, legal bar, military, prisons, and immigration.
[8] In the early 20th century, incitement was determined by the "clear and present danger" standard established in Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. observed: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
"[9] In Brandenburg v. Ohio (1969), this was narrowed to an "imminent lawless action" standard, with the Supreme Court unanimously reversing the conviction of a Ku Klux Klan group for "advocating ... violence ... as a means of accomplishing political reform" because their statements at a rally did not express an immediate, or imminent intent, to do violence.
[10] This decision overruled Schenck v. United States (1919), which held that a "clear and present danger" could justify a law limiting speech.
[11] In 2017, a juvenile court in Massachusetts ruled that repeatedly encouraging someone to commit suicide was not protected by the First Amendment,[12] and found a 20-year-old woman, who was 17 at the time of the offense, guilty of manslaughter on this basis.
[14] On February 6, 2019, the Massachusetts Supreme Judicial Court ruled that the defendant acted with criminal intent, so her involuntary manslaughter conviction was ordered to stand.
The Supreme Court held in the landmark case New York Times v. Sullivan (1964) that lies about the government may be protected completely.
[26] The 1988 decision in Riley v. National Federation of the Blind of North Carolina struck down a license requirement and limits on fundraising fees for telemarketers as unconstitutional and not narrowly tailored enough to survive First Amendment scrutiny.
The 2012 decision United States v. Alvarez struck down part of the Stolen Valor Act of 2005, which prohibited false claims that a person received a military medal.
[29] This doctrine of limited protection for advertisements is due to a balancing inherent in the policy explanations for the rule, namely that other types of speech (for example, political) are much more important.
The Supreme Court first upheld this in Harper & Row v. Nation Enterprises (1985), where copyright law was defended against a First Amendment free speech challenge.
[36] Article I, Section 8 of the U.S. Constitution gives Congress the power to "provide for the Punishment of counterfeiting the Securities and current Coin of the United States".
Relevant cases include: In Chaplinsky v. New Hampshire (1942), the Supreme Court held that speech is unprotected if it constitutes "fighting words".
[48][49] Specifically, speech is "treated as a matter of public concern" by reference to the "content, form, and context of a given statement".
[51] Regulation of speech on broadcast radio and television are permissible when they are narrowly tailored and further a substantial government interest.
The rationale for this exception is that justices have believed that obscenity has a "tendency to exert a corrupting and debasing impact leading to antisocial behavior".
Second, it is irrelevant whether any part of the speech meets the Miller test; if it is classified under the child pornography exception at all, it becomes unprotected.
[62] The rule provides that speech is unprotected if it "visually depicts" children below the age of majority and "performing sexual acts or lewdly exhibiting their genitals".
[66] When the Government acts as a kindergarten through twelfth grade educator, they are allowed to restrict student speech in certain instances.
[67] Later court decisions added more situations where restrictions were possible, including student speech about drugs,[68] "vulgar and offensive" language,[69] and school-operated newspapers.
[78] Thus, while commercial advertising by lawyers is generally protected, rules of professional conduct and ethical guidelines are still permitted.
