14. What type of speech is either not protected or receives limited protection?
The Supreme Court has interpreted the 1st Amendment to not protect all forms of speech. That is, some forms of speech or expression may be limited or fully prohibited by the Government. In determining whether a type of speech or expression is protected, the court will balance the rights of the individual against the potential harm to or effect upon the rights of others. Because the freedom of speech is a fundamental right, the Government cannot limit speech without a compelling government interest justifying the restriction. Pursuant to this understanding, statutory and common law often prohibit or limit the protections offered to: Obscene Speech, Fighting Words, Commercial Speech, Defamation, and Political Speech.
• Discussion: Do you think it is important that the Supreme Court has recognized exceptions to the blanket protection of an individual’s freedom of speech?
• Practice Question: ABC township passes an ordinance that prohibits any form of speech that in the town center that causes a disruption to the local businesses surrounding the square. This ordinance obviously limits the rights of individuals to express themselves in the public square. If this ordinance is challenged in court on constitutional grounds, what type of analysis will the government undertake to determine whether it violates the Constitution?