There are several classes of speech that the Supreme Court has recognized are outside the protection of the First Amendment. In almost every one of these categories, however, the Court has substantially expanded the scope of freedom of speech by imposing constitutional limitations on these excepted categories that narrow the government’s ability to penalize speech from what existed under English common law. One category of speech that falls outside the First Amendment protection is obscenity. Speech is obscene, and thus not protected by the First Amendment, if the average person, applying the standards of his community, would find that the work (1) appeals predominantly to a "prurient," that is, a morbid or degrading, interest in sex, (2) that it depicts sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value. Obviously these terms leave a great deal of room for subjective judgments, and the courts have thus permitted the publication of even the most explicit depictions of sexual conduct, as even a casual visit to any drug store magazine rack will attest. A second category of unprotected speech is defamation. At English common law, speech that injured the reputation of another by exposing him to hatred, contempt, or ridicule was grounds for a civil suit against the speaker. Defamation suits are still permitted, but in the famous case of New York Times v. Sullivan, the Supreme Court substantially limited their scope. The court held that when a public official (later expanded to include public figures who do not hold office) beings a defamation suit, the Constitution require a showing of actual malice, that is, that the defamatory statement was made with knowledge that it was false or reckless disregard for whether or not it was false. This standard has effectively insulated the press from libel suits involving this broad category of plaintiffs. But defamatory statements about private citizens who are not public figures still fall outside the protection of the First Amendment. A third category of unprotected speech is incitements to violence. Speech that calls for imminent, that is, immediate, violence may be prohibited. The key is imminence. A theoretical discussion of the need for revolution, even violent revolution, is protected, but a call to take to the streets immediately may be prohibited. A fourth category of unprotected speech may be what are called “fighting words.” Fighting words are words whose mere utterance causes injury or tends to cause imminent disturbance of the peace. The Supreme Court recognized this exception to the First Amendment in the 1942 case of Chaplinsky v. New Hampshire. There Mr. Chaplinsky was successfully prosecuted for calling a local marshal a “racketeer” and a “fascist.” Although Chaplinsky has not been overruled, it is questionable whether today’s Supreme Court wold upheld a conviction on similar facts. The spirit of Chaplinsky lives on, however, in the current agitation for prohibitions against hate speech or speech that causes emotional harm to those who hear it.
Libel and defamation are the main exceptions to First Amendment protections. For instance, if someone was spreading lies about another person that damaged the victim's reputation, the victim could sue and the court would support them. There have also been exceptions made for speech that incites violence, as well as the proverbial "yelling 'fire' in a crowded theater." Death threats, then, are usually taken seriously by law enforcement as statements of intent, and people who call in false bomb threats are invariably arrested. As you can see, a common theme here is lies—the Founding Fathers wanted to ensure that free speech didn't mean that there was no check on misinformation.
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