Non-Protected Speech
Wiley Davis
Byron Hines
Non-Protected Speech
• The term non-protected speech refers to
forms of speech that are not guaranteed to
citizens under the First Amendment.
Therefore, this speech can be, and in most is,
regulated by local, state, and the federal
government
What Constitutes Unprotected Speech
• Unprotected Speech includes
• Obscenity
• Fighting Words
• Defamation
• Child Pornography
• Perjury
• Blackmail
• Incitement to Imminent Lawless Action
• True Threats
• Solicitation to Commit Crimes
Obscenity
• The type of unprotected speech that is challenged
most often is obscenity.
• The definition of obscene is very subjective in nature,
and for that reason the courts and government have
had a difficult time in deciding what material is
obscene.
• While distributing obscene material to others is often
illegal, regulating private ownership of obscene
material is unconstitutional (Stanley v. Georgia). This is
does not apply to child pornography.
Miller v. California 1973
• Miller was distributing brochures advertising explicit
adult entertainment. Unwilling recipients of the
brochure complained and Miller was arrested and
convicted under California obscenity statues. Miller
appealed
• Constitutional Question: Is the distribution of
obscene material by mail protected by the First
Amendment
• Decision: 5-4 No. Court ruled that obscene material
enjoyed no constitutional protection.
Effects of Miller
• Led to the establishment of the Miller Test of
Prurient Test
• Obscene material must me all three regulations as
described by Justice Warren Burger
• The average person, applying contemporary community
standards' would find that the work, taken as a whole,
appeals to the prurient interest.
• The work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law
• The work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.
Virginia v. Black 2003
• Barry Black was arrested under a Virginia statute that
made it a felony to burn a cross in on the property of
another with the intent of intimidating others. Black
then challenged the constitutionality of the statue
• While the court agreed that Virginia had the right to
ban cross burning with the intent of intimidating, the
part of the statue dealing with treating cross burning
as prima facie evidence was ruled unconstitutional
• Another notable part of this case is the impassioned
dissenting opinion voiced by Clarence Thomas.
Hustler Magazine v. Falwell 1988
• Jerry Falwell, a well known
fundamentalist preacher,
sued Hustler Magazine for
printing a cartoon illustrating
Falwell having an incestuous
relationship with his mother
• Falwell sued Hustler
Magazine for damages and
won $150,000. Hustler
Magazine appealed the
decision
Hustler Magazine v. Falwell (cont.)
• The overriding question in the case: Does the First
Amendment’s freedom of speech protection extend to the
making of patently offensive statements about public
figures.
• In a unanimous 8-0 decision (Kennedy did not participate),
the court ruled in favor of Hustler Magazine saying that
the First Amendment right of Free Speech triumphed state
interest in protect public figures from offensive speech.
• The court also rule that a person could not claim damages
from intentional emotional distress without proving the
material to be a false statement of face and have actual
malice behind it.
NYT v. Sullivan 1964
• The New York Times published a full page ad
that alleged the arrest of MLK in Alabama for
perjury was part of an effort to destroy
integration and discourage Blacks from voting.
Sullivan, the Montgomery City Commissioner,
alleging that he personally was effected by the
claims against the police sued and won
$500,000 in the Alabama court system. The
New York Times appealed.
NYT v. Sullivan 1964
• The overriding question: Did Alabama’s rule of not
having to prove injury in a suit and the fact that the
ad was untruthful do to factual errors violate the
First Amendment freedoms of speech and press.
• Decision: Yes. The court rule 9-0 in favor of the
New York Times. They said the First Amendment
protected all statements against public officials,
even false one, unless there was intentionally
malice.
Conclusion
• Not all types of speech
are allowed under the
constitution.
• There is a great amount
of freedom in speech,
however the
government still has
some limits on what
you can and cannot say.
Sources
• www.oyez.org
• www.firstamendmentcenter.org
