The Court has repeatedly held that some kinds of speech is categorically excluded from First Amendment protection (at least setting aside certain kinds of content-based discriminations within those exceptions, see R.A.V. v. City of St. Paul, which I won’t discuss here). The standard list is obscenity, incitement, libel (or, more precisely, false statements of fact), fighting words, and threats, but in 1982 the Court also recognized an exception for child pornography, and in 2008 for solicitation of crime. The exceptions have generally been defined quite narrowly, and the labels don’t fully capture the definitions; they don’t cover, for instance, all false statements of fact, or all speech that might be seen as “inciting” or “fighting words” by people who aren’t familiar with the First Amendment doctrine. But they do exist, and are an important part of the First Amendment doctrine.
The Court has generally described these exceptions as involving speech that is of very little constitutional value, and (usually) that is demonstrably harmful. That’s not always so: Some punishable incitement might be political speech, of a sort that’s usually seen as valuable, but might be unprotected just because of the magnitude and immediacy of the harm that it threatens; obscenity is seen as being of low value, but even when the Court recognized the exception it didn’t claim that it had been proven to be harmful. But it was easy to see the exceptions as the product of a category-by-category estimation of value and harm. And this was even before we got to the question whether the speech restriction was narrowly tailored to a compelling government interest; that question is asked as to restrictions on speech that is seen as constitutionally valuable because it’s outside an exception.
But in today’s United States v. Stevens, the Court takes a different approach: The First Amendment exceptions, it reasons, are limited only to those that have been historically recognized, or at least that are linked to the historically recognized ones:
The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” …“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 long familiar to the bar” — including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct — are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.”
The Government argues that “depictions of animal cruelty” should be added to the list…. The Government contends that “historical evidence” about the reach of the First Amendment is not “a necessary prerequisite for regulation today,” and that categories of speech may be exempted from the First Amendment’s protection without any long-settled tradition of subjecting that speech to regulation. Instead, the Government points to Congress’s “‘legislative judgment that … depictions of animals being intentionally tortured and killed [are] of such minimal redeeming value as to render [them] unworthy of First Amendment protection,’” and asks the Court to uphold the ban on the same basis. The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”
As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.”
To be fair to the Government, its view did not emerge from a vacuum. As the Government correctly notes, this Court has often described historically unprotected categories of speech as being “‘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.’” … The Government derives its proposed test from these descriptions in our precedents.
But such descriptions are just that — descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor.
When we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis. In New York v. Ferber, for example, we classified child pornography as such a category. We noted that the State of New York had a compelling interest in protecting children from abuse, and that the value of using children in these works (as opposed to simulated conduct or adult actors) was de minimis. But our decision did not rest on this “balance of competing interests” alone. We made clear that Ferber presented a special case: The market for child pornography was “intrinsically related” to the underlying abuse, and was therefore “an integral part of the production of such materials, an activity illegal throughout the Nation.” As we noted, “‘[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.’” Id., at 761 (quoting Giboney v. Empire Storage & Ice Co. (1949)). Ferber thus grounded its analysis in a previously recognized, long-established category of unprotected speech, and our subsequent decisions have shared this understanding.
Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that “depictions of animal cruelty” is among them. We need not foreclose the future recognition of such additional categories to reject the Government’s highly manipulable balancing test as a means of identifying them.
If the Court sticks with this, then it could potentially be an important limit on First Amendment exceptions, and an important guide to future lawyering related to such exceptions.
To be sure, it’s not clear just how speech-protective this will end up being: There are many speech-restrictive traditions in American law; many proposed restrictions could be justified by a sufficiently creative connection to one or another traditionally recognized exception; and the Court’s link of the child pornography exception to Giboney suggests that the Court is indeed willing to accept some rather indirect connections to traditional exceptions. In particular, the “integral part of conduct in violation of a valid criminal statute” exception — while it has to exist to some extent — can be highly problematic if it isn’t suitably defined (see Part II of this article for more on that, and in particular for a criticism of the Giboney opinion). Moreover, whether one likes it or not, much of the speech protection that we enjoy today stems from the Court’s rejecting some traditionally recognized exceptions (such as the exception for blasphemy), and constraining others (such as those for breach of the peace, libel, and obscenity) so that their scope is far narrower than it was before.
Still, at this point it appears that the Court is treating traditional recognition as necessary but not sufficient for First Amendment protection. In particular, the Court has not been showing any signs of endorsing a revival of some of the discarded exceptions, or a broadening of some of the narrowed ones. So the consequence might be that the Court’s stress on the requirement of traditional foundation — again, if it’s willing to stick to it — might indeed help limit the recognition of future exceptions.
troll_dc2 says:
Does the Court’s decision (if it sticks to what it says today) suggest that proponents of the idea that so-called hate speech can be punished will never prevail as against a First Amendment challenge? Moreover, what does the decision suggest for harassment claims in the employment or educational context that are based on the use of allegedly offensive language?
April 20, 2010, 5:44 pmEvilDave says:
What is the over-under on the year in which “Hate Speech” becomes an exception to the 1st amendment?
April 20, 2010, 5:44 pmGuest says:
Shouldn’t the Gadsden flag be enough evidence of the Nation’s long hostility to crush videos?
April 20, 2010, 5:52 pmDilan Esper says:
The problem is, this is really empty history. Indeed, it points to a problem that Chief Justice Rehnquist pointed out in his dissent in Casey with respect to precedent (but the criticism, it seems to me, is just as valid about history), which is that if the point of stare decisis is to respect the judgments and decisions of past cases, and to settle questions to engender reliance, that is pretty flatly inconsistent with curtailing the precedent, hollowing it out, and changing the doctrine. He said that Casey turned Roe into a Potemkin Village, and he had a point.
Similarly, with history, we have to ask ourselves why are we relying on historical exceptions? If it is because we are pure originalists, then we have no business narrowing the exceptions. If it is because there is a benefit in leaving these sorts of questions settled, we also have no business entertaining arguments that the exceptions need to be narrowed. If it is because we believe that the historical exceptions reflect the wise understandings of those who came before us, we have no business entertaining arguments that such understandings need to be second guessed.
Indeed, there’s not much difference, philosophically, between narrowing a historical exception and eliminating it. Nor is there that much difference between eliminating a historical exception and creating a new exception. The only difference is one of window dressing– that you can claim you are following precedent when you simply hollow out an exception without overruling it.
Bottom line– I think the obscenity exception stays because at least 5 people on the Court think the state should have the power to be the sex police. There isn’t anything more to it than that, and history and tradition aren’t doing any work here that the Court doesn’t want them to do.
April 20, 2010, 5:55 pmUrso says:
genuinely hilarious!
April 20, 2010, 5:55 pmShelbyC says:
Heh. What’s about two levels above thread winner?
April 20, 2010, 5:59 pmChris Travers says:
I have always thought Giboney and related cases essentially meant a lower protection for purely practical speech. I.e. computer software might be “speech” under the first amendment, but if it does something illegal might immediately be looked at under the Giboney test. So to that extent it does surprise me that laws criminalizing CP possession would be tied there, rather than seen as primarily an extension of obscenity laws with some practical, Giboney-type influence.
April 20, 2010, 6:02 pmTim says:
Have any high profile cases satisfied the obscenity doctrine in the last 20 years or so?
I suspect the “community standards” portion of the obscenity doctrine creates a “living” doctrine, creating a conflict for the justices that want the Court to be the “sex police” and respect precedent at the same time.
Back on the topic at hand, I think this decision foreshadows the conclusion in Snyder v. Phelps.
April 20, 2010, 8:51 pmDilan Esper says:
Tim:
Yeah. US v. Little (aka “Max Hardcore”).
April 20, 2010, 8:56 pmChris Travers says:
This is a fascinating case because it suggests clearly that Miller v. California might actually be overturned in the near future, reverting obscenity cases to the older Roth standard (of a national community standard).
April 20, 2010, 9:18 pmJ. Aldridge says:
I think because the 1A is written in absolute terms that court created exceptions must be by nature wrong. Adhering to original meaning would do away with creating exceptions. Of course that is no fun for juridical activists.
April 20, 2010, 9:22 pmShelby says:
For the same reason we rely on historical definitions of the words and concepts in the Constitution. Obviously this has been written about ad nauseum (including by some of our esteemed Conspirators), but I think at root it’s very similar to contract interpretation. What was the meaning of the contract when it was formed? What, if anything, has happened to change the meaning of the contract since then? What is permitted to change it? If the Constitution had those implicit exceptions, then they were part of the original agreement.
In its fleshed-out form (i.e. not this comment) I think it’s a pretty decent argument, but even if you don’t buy it, I believe that’s the position in a nutshell.
April 20, 2010, 9:28 pmChris Travers says:
This would fit with the idea that obscenity and blasphemy laws were usually enacted by the states.
April 20, 2010, 9:47 pmll says:
So a law prohibiting videos of animal cruelty violates the 1st amendment 8-1, but prohibiting certain political speech only violates it 5-4?
Is the Supreme Court an ass?
April 20, 2010, 10:04 pmDilan Esper says:
Shelby:
You missed the point of my comment. I listed the various reasons why we rely on history, and showed that none of them justified a half-assed historical approach where we maintain historical exceptions but hollow them out.
April 20, 2010, 10:35 pmChris Travers says:
I think there is a clear benefit of leaving these sorts of questions settled. However, in some cases the cost of unsettling a question can be worth it.
April 20, 2010, 11:12 pmJ. Aldridge says:
That is because such laws had nothing to do with laws of seditious libel against speaking or publishing criticism of govt affairs or officials. The 1A never meant anything other than that, contrary to the court’s wild imagination.
April 20, 2010, 11:39 pmdw says:
As recently as 1919, the Supreme Court upheld a federal statute which effectively made it a crime to criticize the government.
In light of this it seems somewhat odd to place great weight on historical considerations when interpreting the Free Speech clause.
April 21, 2010, 12:19 amOrenWithAnE says:
Put me officially in the pro-wild-imagination party.
April 21, 2010, 1:52 amDNJ says:
That may well be true, but who are those five? The current court is quite speech-protective. Stevens has opposed it, but who knows what his successor will think? I imagine Kennedy would also oppose it, given his jurisprudence and broad conception of the Free Speech Clause. I would expect Scalia and Thomas to support retaining it, given their tendency to vote to uphold restrictions on sexually themed speech. Who knows what the rest would say?
April 21, 2010, 1:56 amNathan Shapiro says:
My sense is that while it’s great the Court declined to develop a balancing test to add to the “exception categories” of First Amendment protection, I don’t see what practical effect it has with regard to depictions of animal cruelty.
Except for Alito’s dissent, they completely dodged the question of the Constitutionality of a ban of depictions of animal cruelty. Once this law’s successor (or a better drafted state statute) returns to them later, I have little reason to believe they won’t come out exactly as Alito did.
From my perspective, there is no other framework better for analyzing this issue than child obscenity/Ferber. The relationship between the depictions in child labor and the underlying crime (abusing children) is the exact same intrinsic relationship between animal cruelty and crush videos.
I can’t see any other First Amendment doctrine that might allow them to uphold a well-crafted ban on the sale and possession of these videos. And I don’t think the court would strike down a narrowly-defined ban on crush videos.
And in that case, once analysis for animal cruelty videos and child porn are effectively identical, the practical effect is animal cruelty becomes just like child pornography in its “exemption from First Amendment protection.”
Am I wrong in this?
As to upholding the a ban under another First Amendment doctrine other than Ferber’s reasoning, I have this question:
Outside the exempt categories the Court mentioned—has any law outright banning expression been upheld under the First Amendment’s strict scrutiny test? Because I can only recall time/manner/place restrictions being subject to—and surviving—strict scrutiny.
April 21, 2010, 2:01 amJ. Aldridge says:
I’m not sure the case dealt with open discussion of governmental affairs rather than an attempt to directly interfere with the governments war effort by work stoppage at factories.
April 21, 2010, 2:24 amJ. Aldridge says:
April 21, 2010, 2:32 amtroll_dc2 says:
J. Aldridge, there are at least two problems with your quote:
1. The platform statement was merely the caucus’ interpretation of the Constitution.
2. The statement did not exclude other topics of discussion from constitutional protection.
April 21, 2010, 9:35 amJ. Aldridge says:
This was the majority party in power in 1800 whose founders was Madison and Jefferson. This is just one of many statements following the adoption of the 1A by those who voted for it.
April 21, 2010, 12:02 pmPersonFromPorlock says:
This seems to me to be a bit of a mis-characterization: Congress and the Court have permitted such restrictions, but whether the absolute phrasing of the Amendment itself does is open to question. I don’t think it does, and that we would be better served by amending the Amendment than by playing fast and loose (however solemnly) with its clear meaning.
April 21, 2010, 12:03 pmChris Travers says:
One of the interesting things about this case is the division between Holmes’ and Clark’s interpretation of the scope of the first amendment. Clark seems to be invoking the “bad tendency test” while Holmes dissents and argues that more must be required. Clark’s analysis seems to center on the idea that these undermine the war effort and therefore fall under the ambit of what speech is subject to regulation. Holmes suggests that these are anti-government leaflets, but not pro-enemy leaflets, and therefore pose no clear and present danger. Indeed, the leaflets at issue accused the US government of conspiring with the German government to destroy the Communist Revolution….
However, this brings up an important point: First Amendment jurisprudence seems to be one of those rapidly evolving areas of law during the 20th century, so I am not sure what counts as long-standing exceptions. Indeed, we see a move from bad tendencies tests, to clear and present danger tests (still disputed in 1919 but winning shortly thereafter), to the doctrine that communication of abstract ideas are fundamentally protected and that only speech which either constitutes or supports material conduct can be banned (Yates), to the imminent lawless action test (Brandenburg).
However, far more problematic is that the First Amendment was written in absolute terms because historical exceptions to free speech were generally not seen as federal matters. So in many ways, this has been very much muddied by incorporation doctrine. If, however, we hold that historical exceptions should be preserved, does that mean that Congress can ban interstate sale of blasphemous materials?
April 21, 2010, 12:09 pmtroll_dc2 says:
Well put. Incorporation (and the growth of First Amendment jurisprudence since then) has given us what might be called First Amendment 2.0, sweeping in areas that were not originally within the purview of the amendment. Yet the wording of the amendment did not change when its scope changed; it is still written in absolutist terms. This may be one reason why we have (and perhaps need) judge-recognized exceptions. Behind the concept underlying the amendment at the time of its adoption was one set of assumptions about its scope, and applying the amendment to the states brought in a quite different set of assumptions as to scope and depth. That is why its interpretation over the decades has been somewhat confused. Will U.S. v. Stevens clear things up? Perhaps for our generation, but new (Obama?) justices could expand the exceptions to include unclear concepts like “hate” speech.
April 21, 2010, 1:19 pmDavid Schwartz says:
Right, but this is by the nonsense “original intent about everything but interpretation” standard that makes no sense.
This argument’s silliness is best shown with reference to the “due process” clause. The founders intended the due process clause to mean that if one could show that some process was in fact due, one was Constitutionally entitled to it. The idea that what the founders meant was that one was entitled to all process they felt was due, even if they were in error, is bizarre and absurd. As if they would say, “Ahh yes, I see now that X is in fact process that is due. But because we all believed it wasn’t when we wrote the Constitution, you are not entitled to it, even though it is due”.
The original intent of “due process” was that a showing that some process was due was a showing that failing to get it was a violation of the right. That is, the right was a recipe for defining a protected zone. If it’s process that’s due, then you’re entitled to it.
The original intent of 1A is that showing that something was freedom of speech (or freedom of the press) was sufficient to show that Congress could make no law restricting it. It matters not one whit what someone at some other time would or would not have considered it to be — it matters what it *is* now.
The idea that original intent means what the founders considered to fall within the categories they drew (rather than the actual boundaries of those categories) is ridiculous, and none of the founders would have agreed that this was their intent since it’s so obviously nonsensical.
April 21, 2010, 6:45 pmJ. Aldridge says:
It is still the same today as it was 220 years ago because the Constitution never had been amended to change that. The court has no authority to amend the constitution at their own pleasure. What you have is justices determining what the constitution should mean rather than what it does mean.
I am not a fan of “original intent.” I prefer “original meaning.”
April 22, 2010, 11:56 amOrenWithAnE says:
The 1A is the same but the country is different — hence the application of the former to latter may have changed even if the 1A is as it was. The Constitution doesn’t exist outside and independently of the country at large.
A statute from 1800 that promised “a day’s wage” to jurors would not allow one to pay a juror $1 for his services in the year 2010. The referent changes along with the daily wage. So too do the concepts of speech and expression change along with the changing meaning of those terms.
April 22, 2010, 1:47 pmChris Travers says:
Ok, but now you have a problem of categories.
We can agree as follows: That Congress should make no law abridging freedom of speech or of the press was an absolute prohibition because areas subject to legitimate regulation of such types were properly done only by the states. Consequently it wasn’t a “natural rights” assessment, but merely an idea that no legitimate act of Congress could, furthering their enumerated powers, address these things.
Consequently when Jefferson attacked the Alien and Sedition acts he did so on two grounds. First he argued that it was was outside the enumerated powers. Only after detailing that argument did he attack it on first amendment grounds. Jefferson’s resolution on this subject shows this fairly well, as I think Madison’s does also. This doesn’t preclude a natural rights analysis, and in fact some states did incorporate in their state Constitutions very clear endorsements of free speech as a natural right, Virginia being a good example. It doesn’t seem unlikely that the Framers, particularly including Madison given his involvement in this on the state level, in fact saw the First Amendment as a natural rights issue, but functional exceptions really weren’t relevant on the federal level, so the original meaning was simple: no exercise of federal powers could be exercised in order to abridge freedom of expression.
Up until the 14th Amendment, this analysis remained largely unchanged, as far as I can see. Rightly or wrongly the Supreme Court has interpreted this amendment to incorporate most of the Bill of Rights (except for the 3rd amendment which binds the states anyway, see Engblom v. Carey, and the 2nd Amendment which is a more interesting question) against the states, holding that these are natural rights which states cannot deny.
One of my points here is that by extending free speech protection obligations to the states, the courts have actually weakened its hold on the federal government. I think it’s fairly clear that a national obscenity ban would, in fact, be seen as violating the first amendment and also exceeding enumerated powers. The states, OTOH, would have been free to regulate obscenity.
April 22, 2010, 2:51 pmJ. Aldridge says:
I’m not sure you can say the court has ever “interpreted” the 14A to make the 1A binding on state or local governments. I say this because I don’t think they ever did any fact finding analysis on the topic. It grew out of a narrow “assumption” whereby future courts have refused to revisit the assumption.
Also, I think states made a distinction between freedom of speech and freedom to speak or write their sentiments. Example: “No law shall ever be passed to restrain or abridge the liberty of speech or of the press; but every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of such right.”
April 22, 2010, 3:52 pmAmy says:
This would fit with the idea that obscenity and blasphemy laws were usually enacted by the states.
April 22, 2010, 11:05 pmLimiting Free Speech (41): Crush Videos | P.a.p.-Blog, Human Rights Etc. says:
[...] solicitation of crime. [...]
July 8, 2010, 4:38 am