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1st Amendment – Exception to Freedom of Speech

Cite this article as: Jason Mance Gordon, "1st Amendment – Exception to Freedom of Speech," in The Business Professor, updated January 2, 2015, last accessed April 1, 2020, https://thebusinessprofessor.com/knowledge-base/speech-partially-protected-1st-amendment/.

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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?

Discussion Input

  • Input on Discussion. The protections of the 1st Amendment must be balanced against the rights of others and the greater good of society. Speech that is deemed to cause immediate harm to others must be weighed against the harm in suppressing the speech. Also, curtailing speech to a limited extend may be necessary for the orderly execution of laws aimed at preserving the piece, protecting property, promoting the democratic system, or protecting different rights of other individuals

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?

Proposed Answer

  • The court would determine whether there is Government action limiting an individual’s freedom of speech. It would then look to determine whether the speech is protected. If the speech does not fall into a category of unprotected speech, the court will move on to determine the extent of the limitation. For example, a time place and manner restriction on speech is far different from an outright ban on a specific type of speech. From there, the court would apply a strict scrutiny analysis to determine if the law is constitutional with regard to the rights being infringed.

Academic Research

Moore, John, The Closed and Shrinking Frontier of Unprotected Speech (December 1, 2014). 36 Whittier L. Rev. 1 (2014). Available at SSRN: https://ssrn.com/abstract=2580193

Mulroy, Steven J., Sunlight’s Glare: How Overbroad Open Government Laws Chill Free Speech and Hamper Effective Democracy (August 24, 2010). Tennessee Law Review, Vol. 78, p. 309, 2011; University of Memphis Legal Studies Research Paper No. 59. Available at SSRN: https://ssrn.com/abstract=1664646 or http://dx.doi.org/10.2139/ssrn.1664646

Mulroy, Steven J., Sunshine’s Shadow: Overbroad Open Meetings Laws as Content-Based, Distinct from Campaign Finance Disclosure Laws, and Constitutionally Suspect (August 5, 2014). University of Memphis Legal Studies Research Paper No. 141. Available at SSRN: https://ssrn.com/abstract=2476601 or http://dx.doi.org/10.2139/ssrn.2476601

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