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 also 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:
(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.
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