First Amendment Exceptions and History

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.