Minimal Protection
Most speech enjoys robust First Amendment protection, but a short, closed list of speech categories does not.
17. Free Speech: Minimal Protection
Some categories of speech, including fighting words, incitement of illegal activity, obscenity, and true threats, receive almost no First Amendment protection. 22
- Some categories of speech are considered of such little value that they receive little First Amendment protection. The Nevada FLE tests four of these categories: obscenity, true threats, fighting words, and incitement of illegal activity.
- Obscenity means that “the average person, applying contemporary community standards, would find that the dominant theme of the material taken as a whole appeals to prurient interest,” and “prurient interest” means “a shameful or morbid interest in nudity, sex, or excretion.” Roth v. United States, 354 U.S. 476, 487 n. 20, 489 (1957); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985).
- Obscenity is defined much more narrowly than pornography, such that most pornography is not obscenity.
- “True threats” are contrasted with mere exaggeration for effect. “True threats” are “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.” Virginia v. Black, 538 U.S. 343, 360 (2003).
- “Fighting words” are words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1932). [The category refers to “a direct personal insult or an invitation to exchange fisticuffs,” not more general expressions of hatred. Texas v. Johnson, 491 U.S. 397 (1989).]
- The category is very narrow. For example, in Snyder v. Phelps, 562 U.S. 443 (2011), the Court determined that extremely offensive language (including “God Hates You” and anti-gay epithets) used in a protest outside a military funeral, was protected speech rather than fighting words.
- The government is permitted to prohibit speech that advocates illegal activity only if the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (emphasis added).
- The government can infringe, prohibit, and even criminalize speech that falls within one of these four categories of unprotected speech.
- Prohibitions falling within these categories, however, need to be well-defined and narrowly limited to survive First Amendment scrutiny.
- Despite the constitutional tolerance for these categories of unprotected speech, viewpoint discrimination within one of these categories is impermissible.
- For example, an ordinance that prohibited fighting words on only one side of a heated dispute would violate the First Amendment.
- The Nevada FLE does not test other categories of no- or low-value speech, including fraud, child pornography, or defamation.
Most speech is protected, but a short, closed list gets almost none. For the Nevada FLE there are exactly four unprotected categories: obscenity, true threats, fighting words, and incitement of illegal activity. Treat them as a fixed enumeration.
Most speech enjoys robust First Amendment protection, but a short, closed list of speech categories does not. For the Nevada FLE there are exactly four, and you should treat them as a fixed enumeration. Take each one on its own terms.
- 1Obscenity is not the same thing as pornography. It is far narrower. The test asks whether the average person, applying contemporary community standards, would find that the dominant theme of the material, taken as a whole, appeals to a prurient interest, meaning a shameful or morbid interest in nudity, sex, or excretion. Because the standard is that demanding, most pornography is not obscene at all, and ordinary sexual or adult content stays on the protected side of the line.
- 2A true threat is a statement in which a speaker directs a threat at a person or group with the intent of placing the victim in fear of bodily harm or death. The line that matters is the one between a real threat and mere exaggeration or hyperbole for effect; a heated, overstated outburst that no one would take as a genuine intent to inflict harm is not a true threat.
- 3Fighting words are words that by their very utterance inflict injury or tend to incite an immediate breach of the peace. The category is extraordinarily narrow. It reaches a direct, face-to-face personal insult or an invitation to a fistfight, not a general expression of hatred, however offensive. Vile, hateful protest language aimed at the public at large, even outside a funeral, has been held to be protected speech rather than fighting words.
- 4Incitement is the one with a two-part trigger, and both parts must be present. The government may prohibit speech advocating illegal activity only if the speech is directed to inciting or producing imminent lawless action and is also likely to incite or produce such action. Abstract advocacy of unlawful conduct at some indefinite future time, without that imminence and likelihood, stays protected.
Two structural points round this out. First, the government may prohibit and even criminalize speech inside these four categories, but any such prohibition must be well-defined and narrowly limited to survive First Amendment scrutiny. Second, even within an unprotected category the government may not engage in viewpoint discrimination; an ordinance that banned fighting words used by only one side of a heated dispute would still violate the First Amendment.
If a fact pattern tries to push some other label at you, that is your signal that the speech is protected, because the tested set of unprotected categories ends at those four.
Keep the exclusions in view. The Nevada FLE does not test fraud, child pornography, or defamation, so do not let an answer choice treat any of those as a tested unprotected category.
Four and only four unprotected categories on this exam: Obscenity, True threats, Fighting words, Incitement.
If a stem labels the speech anything else, the speech is protected.
Obscenity is not pornography.
Average person, contemporary community standards, dominant theme taken as a whole, appeals to prurient interest (shameful or morbid interest in nudity, sex, or excretion).
Most pornography fails this test and stays protected.
True threat = intent to place a specific victim in fear of bodily harm or death.
Exaggeration or hyperbole for effect is not a true threat.
Fighting words are very narrow: a direct, face-to-face personal insult or an invitation to fisticuffs, not a general expression of hatred.
Offensive protest language to the public is protected.
Incitement needs both prongs: directed to inciting imminent lawless action and likely to produce it.
Abstract advocacy of future lawbreaking stays protected.
Even inside an unprotected category, viewpoint discrimination is impermissible, and any prohibition must be well-defined and narrowly limited.
Off-limits, never a tested category: fraud, child pornography, defamation.
An option that calls one of those unprotected here is wrong on scope.
A man stands on a public sidewalk during a political rally and shouts to the crowd that the government is corrupt and that someday people ought to rise up and burn the courthouse down. Police arrest him, and the prosecutor argues the speech is unprotected incitement.
He is standing in front of the courthouse beside a crowd already holding torches and lighter fluid, and he shouts "light it up right now, everyone, go." Now the words are directed to producing imminent lawless action and, given the primed crowd, are likely to produce it, so the speech crosses into unprotected incitement.
An option treats fraud, child pornography, or defamation as a tested unprotected category, or uses one of those labels to strip protection.
The Nevada FLE tests only obscenity, true threats, fighting words, and incitement; fraud, child pornography, and defamation are expressly excluded from scope.An obscenity option uses the wrong test, asking only whether material is pornographic or sexually explicit, or a true-threat option drops the intent-to-place-in-fear requirement.
Recite the exact standard: obscenity needs the average-person, contemporary-community-standards, prurient-interest showing (most pornography fails it), and a true threat needs intent to place a victim in fear of bodily harm or death.An absolute option: any advocacy of illegal activity is unprotected, any offensive insult is fighting words, or the government may regulate unprotected speech in any manner it chooses.
Each category has a boundary: incitement needs imminence and likelihood, fighting words reach only direct personal insults or invitations to fight, and even unprotected speech cannot be regulated by viewpoint.An option leans on how offensive or upsetting the speech was, or on the absence of any actual harm, as if that decides the question.
Offensiveness and emotional distress do not strip protection, and a true threat needs no actual harm; the speech must fit one of the four narrowly defined categories.An option reaches the correct yes/no but on a ground the scope does not use, for example upholding a one-sided fighting-words ban because fighting words are unprotected.
Name the operative rule: viewpoint discrimination within an unprotected category is impermissible, so a one-sided ban fails even though fighting words are unprotected.the stem hands you speech the government wants to punish and dares you to call it unprotected.
force it into the closed list of four: obscenity, true threats, fighting words, or incitement.
If it fits none of those, it is protected, and any "other category" label (fraud, child pornography, defamation) is out of scope and wrong.
If it claims obscenity, run the full standard and remember most pornography is not obscene.
If it claims a true threat, look for intent to place a specific victim in fear of bodily harm or death and rule out mere exaggeration.
If it claims fighting words, demand a direct, face-to-face personal insult or invitation to fight, not general offensive or hateful expression.
If it claims incitement, demand both imminence and likelihood.
And even when the speech does fall in a category, check the regulation: it must be well-defined and narrowly limited, and it may not discriminate by viewpoint within the category.
A city adopted an ordinance that criminalized the sale of any sexually explicit film, and a video shop owner was prosecuted under it for selling adult films to consenting adults. The films depicted nudity and sexual activity, but a trial court found that an average person applying contemporary community standards would not find that the dominant theme of the films, taken as a whole, appeals to a prurient interest. The shop owner challenged his conviction as a violation of the free speech protection.
Is the shop owner likely to prevail on his challenge under existing precedent?
A protester stood across the street from a funeral and held signs and shouted extremely offensive messages expressing hatred toward a group, including crude epithets, directed at the public and the mourners generally. The speech was vile and deeply upsetting, but it was not a face-to-face personal insult aimed at any particular individual and did not invite anyone to fight. A city cited the protester under an ordinance banning the public use of grossly offensive language.
Is the protester's speech most likely protected under existing precedent?
A speaker addressed a crowd at a rally and declared that the country's laws were unjust and that, at some point in the future, citizens should be willing to break those laws to bring about change. He named no time, no place, and no specific unlawful act, and the crowd dispersed peacefully afterward. A prosecutor charged the speaker under a statute punishing speech that advocates illegal activity.
Is the speaker's conviction likely to be upheld under existing precedent?
A man, furious with a coworker, sent her a series of messages stating that he would come to her home that night and beat her so badly she would not survive. He stated he knew where she lived and named the time he would arrive. He later claimed he was only blowing off steam and never planned to act, but the messages were specific and were intended to make the coworker fear for her safety. He was prosecuted under a narrowly drawn statute criminalizing threats of violence.
Is the man's speech most likely outside the protection of the free speech guarantee under existing precedent?
Two political factions in a city regularly clashed, and members on both sides sometimes hurled direct, face-to-face personal insults inviting fistfights. The city enacted an ordinance that prohibited the use of such fighting words only by members of one of the two factions, while permitting members of the other faction to use the same kind of language. A member of the targeted faction, cited under the ordinance, challenged it.
Is the ordinance most likely unconstitutional under existing precedent?