What does the First Amendment not protect?

The categories of unprotected speech include obscenity, child pornography, defamatory speech, false advertising, true threats, and fighting words. Deciding what is and is not protected speech is reserved to courts of law. The First Amendment only prevents government restrictions on speech.

Does the First Amendment protect lying? Depending upon the context, the answer is either "no," "yes," or "maybe." It is an interesting question which the Supreme Court is almost certain to revisit.

In New York Times v Sullivan (1964), the Court extended First Amendment protection to false statements of fact in a defamation suit. The Court held such statements, when made about about a public official, could not be the basis for awarding damages, at least without evidence that the false statements either were made recklessly or with knowledge of their falsity. The Court suggested that, while false statements contribute nothing of value to political discourse, they need protection to allow "breathing room" for statements that are true. Without this protection, the Court noted, true statements might not be made either out of a fear that the speaker could be later proven wrong, or that a biased jury might find the statements to be untrue even when they are not. While the Court's majority refused to extend protection to deliberate lies, three justices would have gone further and held that public officials and public affairs can be discussed "with impunity." Justices Black and Douglas argued that the power of government to use any law to impose damages is "precisely nil." Justice Goldberg agreed, suggesting that the defense of a public official against "deliberate misstatements" was "counterargument and education."

Deliberate misstatements of fact were at issue in Hustler Magazine v Falwell (1988). Hustler magazine had stated that a prominent fundamentalist minister, Jerry Falwell, had drunken sex with his mother in an outhouse. Although the Court noted that "false statements of fact are particularly valueless," it drew a distinction between false statements not meant or likely to be believed by readers and other false statements of fact. The Court held that First Amendment prohibited awarding damages for false statements about public figures that cannot reasonably be believed. Satire and parody often involve false statements, and so long as persons would not take the statements to be true, they cannot be the basis for a tort action.

Rickert v Washington, a 2007 decision of the Washington Supreme Court, considered whether a political candidate could be punished for telling deliberate lies about her opponent in a political campaign. Voting 5 to 4, the court held that Marilou Rickert, a Green Party candidate for the State Senate, could not be fined for falsely claiming in a campaign broshure that one of her opponents "voted to close a facility for the developmentally challenged." The Court's majority said the state law "naively assumes that the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech."

United States v Alvarez (2012) raised the question of whether the First Amendment allowed prosecution of a newly elected member of a California water board who introduced himself to a group of citizen as a 25-year Marine veteran who had been "awarded the Congressional Medal of Honor." Alvarez was prosecuted under the Stolen Valor Act which authorizes imprisonment for anyone who "falsely represents himself or herself...to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States." The Supreme Court, on a 6 to 3 vote, affirmed the Ninth Circuit decision overturning Alvarez's conviction. Justice Kennedy (joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor) applied strict scrutiny to the law and noted that content-based restrictions on speech were almost always unconstitutional. Justices Breyer and Kagan, concurring, said intermediate scrutiny should apply to false statements, but that the Stolen Valor Act must fall, because it applied too broadly, even to false claims made to family and friends in private, for example. The two concurring justices' opinion left open the possibility that Congress might redraft a narrower statute that could be upheld. Justices Alito, Scalia, and Thomas dissented.

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/lying.html

1. It is beyond question that some lies (e.g., perjury, consumer fraud, filing a false police report, forgery) are not protected by the First Amendment. What are the general characteristics of a false statement that should determine whether it is protected by the First Amendment or not?

2. New York Times affords protection for even negligent false statements, but not for deliberate false statement, that damage another person's reputation. Do you think the New York Times standard affords sufficient breathing room for discourse about public officials or should the Court have adopted the recommendation of Justices Black, Douglas, and Goldberg and protected even deliberate lies. Does your answer depend upon how much faith you have in juries to do their job well?

3. Key to the Court's decision in Hustler v Falwell was that no reasonable reader would have believed the statements in the magazine about Rev. Falwell to be true and that it is difficult to draw a line that allows such statements--even when made with the intent to injure--to be separated from satirical commentary. Might remarks ever do harm to a reputation even if they are not believed? Is there any solid principle you can imagine that could separate the outrageous statements in Hustler from the sort made by political cartoonists and late-night comedians?

4. 18 U.S.C. 1001 makes it a crime to "knowingly...make any materially false, ficticious or fraudulent statement" to a federal agent. This provision, which was the downfall of a number of well-known defendants from Martha Stewart to Governor Blagojavich, has been upheld by the Supreme Court. Even a conviction based on the answer of "no" to a question from a federal agent, when the actual answer is "yes," has been upheld by the Court (Brogan v U.S.)(1998). Do you think prosecutions under this very sweeping provision might ever violate the First Amendment? If so, in what situations might that be the case?

5. Rickert v Washington says that the state cannot impose fines on a candidate for telling deliberate lies about his or her opponent, no matter how outrageous ("My opponent threw a cocker spaniel from a tressel;" "Last Saturday night my opponent drugged and slept with a fifteen-year-old girl"). Is counter-speech or a subsequent defamation suit always an adequate remedy?

6. What is the harm the government sought to prevent through enactment of The Stolen Valor Act. What actual harm do you think was caused by Alvarez's bizarre claim to have been awarded the Congressional Medal of Honor?

7. Do you think the court in Alvarez was correct in applying strict scrutiny to The Stolen Valor Act?

8. Lies to get money (consumer fraud, etc.) are generally punishable. Are lies to get votes substantially less harmful and, therefore, less deserving of punishment? Are there other arguments for being more protective of politically-motivated lies?

Some speech is not protected by the First Amendment, but that's true regardless of whether it's bigoted or hateful

For instance, threats of violence are constitutionally unprotected. That includes all threats–racist threats, threats to police officers, threats to business owners, threats to the President, anyone.

Likewise, intentionally inciting immediate violence is sometimes punishable. Classic example: Giving a speech to a mob outside a building, urging them to burn it down. But again, it doesn't matter if the speech is outside a synagogue, a police station, or a recycling center.

Personal insults said to someone's face might also be punishable, as so-called "fighting words."

Again, though, that's true regardless of whether the insults stem from personal hostility or group hatred related to race, religion, and the like.

Indeed, in 1992, the Supreme Court struck down an ordinance that specially targeted bigoted fighting words. Such an ordinance, the Court said, unconstitutionally discriminates against particular viewpoints.

Hate crime laws are constitutional, so long as they punish violence or vandalism, not speech

The classic example is Wisconsin v. Mitchell, the 1993 case in which the Supreme Court unanimously upheld hate crimes laws. Todd Mitchell, a young black man, urged some friends to beat up a white boy because the boy was white.

Wisconsin law made the beating into a more serious crime because the boy was targeted based on his race. The Court said this is fine, because "a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment."

And while the law increased the punishment because of the defendant's intent, the law often punishes people more because of why they did what they did.

Killing someone for money will get you a harsher punishment than killing them out of momentary anger. Likewise, firing an employee because of his race will get you a civil lawsuit; firing an employee for most other reasons won't.

None of this covers the mere expression of hateful ideas, or the use of words that some see as hateful. Those are indeed generally protected by the First Amendment.

But why? The Justices generally agree that racist ideas, for instances, are wrong and dangerous. Why would the Justices say hate speech is constitutionally protected?

Because they don't trust government officials to decide which ideas are wrong and dangerous.

They worry that if government officials had the power to ban evil ideas, that power would quickly stretch to punishing a wide range of debate and dissent. And they see the First Amendment as requiring that distrust.

In the words of Justice Black, echoed by the Supreme Court in 1972, "The freedoms…guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish." [quoting Healy v. James, 408 U.S. 169 (1972).]

So to sum up:

1: There is no "hate speech" exception to the First Amendment

2: Threats of violence and incitement to violence are not protected, but that has nothing to do with "hateful" content.

3: and Hate crime laws can punish violence or vandalism based on the offender targeting particular groups, but that doesn't allow punishment of supposed "hate speech."