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Video Lesson: Overview of limited categories

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First Amendment for College Administrators

Lesson 2: Unprotected Speech 

Video 1: Overview of limited categories

Video 1: Overview of limited categories
Video Transcript

The First Amendment protects a vast range of speech and expressive conduct. But it doesn’t protect all speech and expressive conduct. The categorical exceptions to the First Amendment are few, narrow, and carefully defined by the courts. 

These categories include violence, true threats and intimidation, incitement to imminent lawless action, harassment, obscenity, child pornography, and defamation. The Supreme Court has consistently refused to add any more categories—false statements for example—to this list. In this lesson, we’ll focus on a few types of unlawful expression that come up most often in the campus context.

A true threat is a “serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Intimidation “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.”

Importantly, the speaker does not need to actually intend to engage in violence for the government to punish threats or intimidation. As the Supreme Court clarified in Counterman v. Colorado, the speaker crosses beyond the First Amendment’s protection when he knows of or “consciously disregard[s] a substantial risk that his communications would be viewed as threatening violence.” But this means that the government must have some evidence of the 𲹰’s state of mind before punishing the speech – it’s not enough that a listener merely interprets the speech as a threat.

Incitement is speech that is both “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” This standard arises from the Supreme Court’s 1969 decision in Brandenburg v. Ohio, which was a First Amendment challenge to the arrest of Ku Klux Klan members under an Ohio criminal syndicalism law. Striking down the Ohio law, the Brandenburg Court reasoned “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.”

It’s important to emphasize that to lose protection as incitement, the speech at issue needs to be (1) directed to producing (2) imminent lawless action and (3) likely to result in such action. In other words, the speaker must intend for his audience to break the law all but immediately, and the audience must be primed to do so. That’s a necessarily high bar, designed to protect a great deal of charged political expression by capturing only that speech that is all but inseparable from the unlawful action that directly follows it. Mere advocacy of violence or lawlessness, without the additional Brandenburg factors, is protected speech.

Incitement should also not be confused with “fighting words”—a category of speech once thought “inherently likely to provoke violent reaction” from another person—which the Supreme Court has, effectively, conceded no longer exists.

Finally, expression that constitutes discriminatory harassment is not protected under the First Amendment. In Davis v. Monroe County Board of Education, the Supreme Court case set forth the definition of discriminatory harassment in the educational context: targeted conduct that is so severe, pervasive, and objectively offensive that it denies its target access to an educational opportunity or benefit. The Davis standard, while exacting, is by no means an insurmountable hurdle. When students are targeted by harassment that makes them unable to attend class or study in the library – the legal standard requires institutions to step in and respond. You’ll learn more about harassment, and how you can legally address it on campus, in a later lesson.

Merely offensive or hateful speech – without more – is protected under the First Amendment unless it falls within one of these limited categorical exceptions. Our nation has chosen this path “to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” In the next video, we’ll learn more about why our right to express our beliefs requires also protecting speech that may offend us.

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