FAN 29 (First Amendment News) — Exceptional Freedom: How many exceptions are there to the First Amendment?


[W]e decline to carve out from the First Amendment any novel exception.                     — Chief Justice John Roberts (2010)

When we talk about exceptions to the First Amendment’s guaranty of freedom of expression, Justice Frank Murphy’s famous 1942 dictum in Chaplinsky v. New Hampshire comes to mind:

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. 

Note that the list of exceptions he offered was an incomplete one. To much the same effect as Chaplinsky, in his majority opinion in United States v. Stevens (2010) Chief Justice John Roberts declared:

From 1791 to the present, however, the First Amendment has ―permitted restrictions upon the content of speech in a few limited areas, and has never ―include[d] a freedom to disregard these traditional limitations.  . . . These historic and traditional categories [are] long familiar to the bar, . . . [and include] obscenity, . . . defamation, . . . fraud, . . . incitement, . . . and speech integral to criminal conduct . . . . [They] are well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.

Against that backdrop, the Chief Justice emphasized: “we decline to carve out from the First Amendment any novel exception.” He Unknownalso cautioned: “cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

The question, of course, is exactly how many “well-defined and narrowly limited classes” of exceptions are there (Chaplinsky), or  precisely how many “historic and traditional categories” of speech fall outside of the First Amendment (Stevens)?

To answer that question it is important to note that not all of the categories listed by the Chief Justice are single-subject exceptions. For example, consider the “speech integral to criminal conduct” category. That exception itself consists of more than a few particularized exceptions. And then there are the other exceptions that were left unmentioned.

So many exceptions

Mindful of the above, and as I have noted elsewhere, here is a list of the additional (or more particularized) types of expression that have been deemed unprotected:

(1)       blackmail

(2)       bribery

(3)       misleading commercial expression

(4)       incitement to lawless action

(5)       expression that violates an intellectual property right

(6)       criminal conspiracy expression

(7)       threatening expressions

(8)       expression that endangers national security

(9)       insider trading expression

(10)     perjurious expression

(11)     harassment in the workplace expression

(12)     expression in contempt of court

(13)     plagiaristic expression

(14)     criminal solicitation (e.g., prostitution or murder for hire)

(15)     child pornography

(16)     speech that amounts to bullying

(17)     intentionally false speech likely to create a dangerous public panic

(18)     intentionally misrepresenting oneself as a government official

(19)  intentionally false material statements made to voters concerning authorship or endorsement of political campaign materials

(20)     certain kinds of intentionally false statements made about a political or public figure

(21)     certain kinds of prisoner expression

(22)     certain kinds of government employee expression

(23)     certain kinds of government funded expression

(24)     certain kinds of student expression

(25)     certain kinds of expression by those in the military

(26)     expression deemed secret owing to a private contract or law

(27)      certain kinds of expression expression that unfairly places another in a false light

(28)     intentional expression that causes emotional distress

(29)     expression in violation of anti-trust laws

(30)      certain kinds of expression that cause prejudicial publicity that interferes with a fair trial

(31)     intentionally disclosing the identity of secret government agents

(32)     certain kinds of expression that invade the privacy of another

(33)     certain kinds of expression limited by time, place, and manner restrictions

(34)     certain kinds of expression that involves intentional lying

(35)     certain kinds of expression by sitting judges

(36)     certain kinds of expression aired on the public airwaves

(37)     certain kinds of panhandling

(38)     certain kinds of telemarketing

(39)     certain kinds of speech harmful to minors

(40)     certain kinds of commercial solicitation (e.g. lawyers soliciting business)

(41)   certain kinds of expression concerning the unauthorized practice of some licensed profession (e.g., medicine or law)

(42)     certain kinds of intentional lying to government officials (e.g., lying to Congress while under oath or false police reports) and

(43)     certain kinds of evidence introduced into court and in courtroom expression governed by the rules of evidence.

And what of revenge porn & cyber harassment?

Are there more? Perhaps. Might some of the above ones now be deemed unconstitutional? Perhaps. That said, my point is that the lists offered in Chaplinsky and Stevens (among other Supreme Court opinions) give the impression that the number of exceptions to the First Amendment is actually far fewer than may well be the case.

In all of this, however, I do not mean to undermine a robust commitment to free speech freedom — a commitment well beyond what is fashionable in many circles of academia today. Still, if originalism is to be a significant and even determinative guide here, we must be duly mindful of its true dimensions. This is not to say the results reached by the Roberts Court in several First Amendment cases could not otherwise be justified, but rather that some of the Court’s originalist language needs to be more fully stated and explained.

Justices asked to review Secondary Effects case 

→ The case is: City of Indianapolis, Indiana v. Annex Books, Inc. (docket #: 13-1441)

→ The facts: “Indianapolis requires adult bookstores to remain closed between the hours of midnight and 10 a.m. every day, and all day Sunday. Other retail businesses are not subject to these restrictions. In earlier rounds of this litigation, Indianapolis contended that closure would curtail secondary effects, but we concluded that the evidence it offered was weak, contested in material respects, or concerned different kinds of businesses or different kinds of laws, such as minimum distances between adult outlets rather than closure. . . . The district court then held a trial. Indianapolis gave a single justification: fewer armed robberies at or near adult bookstores. The district court found this adequate and entered judgment for the City.”

→ The issue: Whether, to satisfy the First Amendment as applied in Renton v. Playtime Theatres, Inc. (1986) and its progeny, an hours-of-operation regulation targeting negative secondary effects must be supported by highly specific, statistically-significant empirical evidence.

District Court opinion here (denying First Amendment challenge)

→ When the case was before a 7th Circuit panel, Judge Frank Easterbrook sustained the First Amendment challenge. In an opinion for the court, Judge Easterbrook ruled that the “current justification is weak as a statistical matter. The City did not use a multivariate regression to control for other potentially important variables, such as the presence of late-night taverns. The change in the number of armed robberies is small; the difference is not statistically significant. The data do not show that robberies are more likely at adult bookstores than at other late-night retail outlets, such as liquor stores, pharmacies, and convenience stores, that are not subject to the closing hours imposed on bookstores. And most of the harm of armed robberies falls on the bookstores (and their patrons) rather than on strangers. . . . That the City’s regulation takes the form of closure is the nub of the problem. Justice Kennedy, whose vote was essential to the disposition of Alameda Books, remarked that ‘a city may not regulate the secondary effects of speech by suppressing the speech itself.’ . . . Indianapolis does not contend that any of the plaintiffs sells obscene material; it follows that objection to the plaintiffs’ stock in trade cannot justify closure.”

The prevailing lawyers in the Circuit Court:  J. Michael Murray & Steven D. Shafron

→ Counsel of record on cert petitionScott Bergthold (co-author of Local Regulation of Adult Businesses)

→ Brief in Opposition here (Messrs. Murray & Shafron)

Distributed for Conference of September 29, 2014. (Hat tip to Maureen Johnston, SCOTUSblog)

ACLU lawsuit defends press right to observe executions

This from an ACLU press release:

The First Amendment guarantees the public and the press the right to witness certain government proceedings – including public executions. On August 25, 2014, the ACLU and the ACLU of Oklahoma filed a lawsuit arguing that this right was violated during the botched execution of Clayton Lockett in Oklahoma. The lawsuit was filed on behalf of The Guardian and The Oklahoma Observer, whose journalists were deprived the right to view and fully report on the execution.

 Oklahoma Observer v. Patton – complaint here

Ban on accepting tips for performing outside subway entrances enjoined

According to a Washington Post story: “Alex W. Young, who makes his living with a guitar and a song, says he finally got tired of being shooed away from Metro stations by police officers. He saw no harm in what he was doing — playing music for tips outside subway entrances, his instrument case open at his feet. Buskers are part of the traditional fabric of public transportation in America, Young says. And with a lawyer by his side, he has gone to federal court, intent on proving his point.”

John W. Whitehead

John W. Whitehead

“Young’s lawsuit, filed July 16 in U.S. District Court in Washington, challenges Metro’s busking ban on First Amendment grounds. Although a resolution of the matter could be years away, Young won an early round in the fight: On Aug. 14, a judge issued a preliminary injunction that allows buskers to perform on Metro property while the case is pending, provided they don’t stand within 15 feet of station entrances.”

Source: Paul Duggan, “D.C.-area busker wins round in suit against Metro ban on accepting tips near stations,” Wash. Post, Aug. 21, 2014

→ The lawyer who represented Mr. Young was John W. Whitehead of the Rutherford Institute, who tags himself a “a free speech purist.” See also here re his amicus brief in Elonis v. United States (true threats case).

Reminder: Senate to vote on amendment to First Amendment

A procedural vote has been scheduled for Monday, September 8, 2014 at 6 p.m. EDT concerning a proposed amendment to the First Amendment. More on this next month.

California considering banning Confederate flag . . . and images of it

According to a news report in the Los Angeles Times:

A bill that would prohibit California from displaying or selling merchandise with the Confederate flag is headed to Gov. Jerry Brown’s desk, after getting final legislative approval in the Assembly on Thursday. The measure by Assemblyman Isadore Hall III (D-Compton) would prohibit the state from displaying or selling merchandise emblazoned with the Confederate flag. The ban would not apply to images of the flag found in books, digitial media or state museums if displayed for educational or historical purposes. Hall introduced the bill, AB 2444, after his mother, on a visit to the Capitol, saw a replica of Confederate money sold in the gift shop. The money contained a picture of the flag.The bill passed the Assembly on a bipartisan 66-1 vote, a symbol, Hall said, of “standing together united to fend off the ugly hatred of racism that’s been portrayed and demonstrated through the emblem of the Confederacy.”

The bill provides:

8195. (a) The State of California may not sell or display the Battle Flag of the Confederacy, also referred to as the Stars and Bars, or any similar image, or tangible personal property, inscribed with such an image unless the image appears in a book, digital medium, or state museum that serves an educational or historical purpose.

(b) For purposes of this section, “sell” means to transfer title or possession, exchange, or barter, conditional or otherwise, in any manner or by any means whatsoever, for consideration. “Transfer possession” includes only transactions that would be found by the State Board of Equalization, for purposes of the Sales and Use Tax Law, to be in lieu of a transfer of title, exchange, or barter.

Quick Hits 

New & Forthcoming Books

Joseph Blocher

Professor Joseph Blocher

Scholarly Articles

New Rulings

→ Discussed in: Steven Schwinn, “Ninth Circuit Upholds Ban on Solicitation at LAX,” Constitutional Law Prof Blog, Aug. 24, 2014

New Court Filings

News Stories, Editorials & Op-eds

States obviously have wide authority to regulate medical treatment to protect patient safety and privacy. But when these regulations involve politically motivated discrimination against disfavored viewpoints, courts must not hesitate to apply the general principles of the First Amendment.

Laurence Tribe, “The First Amendment Should Protect Disfavored Viewpoints,” New York Times, Aug. 20, 2014

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Now before the Supreme Court, Cato has joined the American Civil Liberties Union, the Abrams Institute for Freedom of Expression at Yale Law School, the Center for Democracy & Technology, and the National Coalition Against Censorship on a brief supporting Elonis’s position. We argue that Supreme Court precedent shows that (1) a subjective intent to threaten is an essential element of a “true threat,” (2) requiring a finding of subjective intent is in line with First Amendment principles, and (3) drawing the line between threat and protected speech carefully is particularly important given the rise of the Internet as a forum of communication—one where it can be easy to take things out of context.

Ilya Shapiro, “The First Amendment Protects Random Ugly Rap Lyrics,” Cato, Aug. 22 2014

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Last Scheduled FAN Column: #28 — “The Demise of Stare Decisis?”

Last FAN Column: #28.1 — “The First Amendment in the Era of ISIS”

Next Scheduled FAN Column: #30 — Wednesday, September 3, 2014

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1 Response

  1. Bob says:

    This is extraordinary – virtually every one of the claims about “exceptions” to the first amendment in this article is wrong. Not a little wrong, but it’s clear from the way the article is written that the author knows he’s being misleading.

    Some of them are wrong for missing basic concepts like the use/mention distinction. Others mistake restrictions on where an expression may take place, or when, for a restriction on the expression itself.

    The procedural aspect of the 1st amendment is entirely ignored…