What does the First Amendment Protect?
Although the language of the First Amendment is absolute,33 few have seriously questioned the proposition that it was never intended to be without exception. For example, well-known commentators such as Professor Leonard Levy point to Congress’ enactment of the Sedition Act in 1798, not even a decade after the ratification of the First Amendment, as proof that those exceptions historically attendant to the British definition of “free speech,” such as libel, slander, and treasonous utterances, were meant to apply to American jurisprudence as well.34 In the early part of the 20th century, when addressing the constitutionality of criminal syndicalism laws, the Supreme Court said:[T]he First Amendment[,] while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech. [Cite omitted].35
Having established that the First Amendment was not intended to protect all expression, no matter what the intent or effect, the Supreme Court has set about a more than century-long effort to delineate which expression falls on which side of the line. In carving out categorical exceptions to the First Amendment’s protections, the Court has generally done so based upon the value of the speech to the underlying purpose of the Constitutional provision.
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words —those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.36
Ultimately, obscenity was placed (or found to be) within the unprotected categories of “low value speech,” which has justified its regulation.37
– Selena Snow
33 “Congress shall make NO law. . . .” U.S. Const. amend. I. (Emphasis added).
34 See, e.g., Kristian D. Whitten, The Economics of Actual Malice: A Proposal for Legislative Change to the Rule of New York Times v. Sullivan, 32 Cumb. L. Rev. 519, 532-533 (2002), quoting Leonard Levy, The Emergence of a Free Press 13 (1985).
35 Frohwerk v. United States, 249 U.S. 204, 206 (1919).
36 Chaplinsky v. New Hampshire, 315 U.S. 568, 571-2 (1942) (footnotes omitted).
37 See Roth v. United States, 354 U.S. 476 (1957), discussed further infra at note 55 and accompanying text.