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Amdt1.7.5.1 Overview of Categorical Approach to Restricting Speech

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

While content-based restrictions on protected speech are presumptively unconstitutional, the Supreme Court has recognized that the First Amendment permits restrictions upon the content of speech falling within a few limited categories, including obscenity, child pornography, defamation, fraud, incitement, fighting words, true threats, and speech integral to criminal conduct.1 This “limited categorical approach” 2 to content-based regulations of speech derives from Chaplinsky v. New Hampshire, wherein the Court opined that there exist “certain well- defined and narrowly limited classes of speech [that] are no essential part of any exposition of ideas, and are of such slight social value as a step to truth” such that the government may prevent those utterances and punish those uttering them without raising any constitutional issues.3 More recent decisions of the Court reflect a reluctance to add any new categories of excepted speech and an inclination to interpret narrowly the excepted categories of speech that have long-established roots in First Amendment law.4 Further, a 1992 decision cautioned that although “these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.),” these categories are not “entirely invisible to the Constitution.” 5 Specifically, the Court said a regulation of one of these categories of speech might still violate the First Amendment if it contained additional content- or viewpoint-based distinctions unrelated to the proscribable content: while “the government may proscribe libel . . . it may not make the further content discrimination of proscribing only libel critical of the government.” 6

See United States v. Stevens, 559 U.S. 460, 468 (2010). back
R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992). back
315 U.S. 568, 571–72 (1942). back
See, e.g., United States v. Alvarez, 567 U.S. 709, 718 (2012) (plurality opinion) ( “Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements.” ); Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 792 (2011) (holding that the obscenity exception to the First Amendment does not cover violent speech); Stevens, 559 U.S. at 472 (declining to “carve out” an exception to First Amendment protections for depictions of illegal acts of animal cruelty); Hustler Magazine v. Falwell, 485 U.S. 46, 55 (1988) (refusing to restrict speech based on its level of “outrageousness” ). back
R.A.V., 505 U.S. at 383. back
Id. at 383–84. back