Constitutional Law II

Unprotected Speech

Inflammatory Speech
Masses Test

The Masses test, although never adopted adopted by the Supreme Court, held that speech directly advocating criminal activity is unprotected. It does not matter how likely, serious, or imminent the crime would be.

Clear and Present Danger

The clear and present danger test is not followed anymore, but it used to be the test for whether or not speech could constitutionally be prohibited.

The clear and present danger test says that the government may punish speech that is intended to produce, or of which the natural and probable effect is to create, a danger of a likely, imminent, and serious crime.

The Court will defer to Congress what constitutes a clear and present danger.

Brandenburg Test

The Brandenburg test is the current test for what inflammatory speech Congress can prohibit. It requires advocacy directed to inciting or producing imminent lawless action and that is likely to incite or produce such action.

Discuss all three on a test.


A true threat is a statement where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence ot a particular individual or group of individuals.

The most important element is the intent to put in fear.

Intent to carry out the threatened action is not needed.

The Supreme Court has not ruled whether knowledge or recklessness would be a sufficient mens rea.

Hate Speech

Hate speech is not a separate category of unprotected speech for First Amendment purposes.

Hate speech must fall within another recognized category to lose First Amendment protection.

Group Libel

Group libel is not unprotected speech.

A group libel conviction was upheld in Beauharnias v. Illinois, but for a number of reasons, this is probably not good law anymore.

Fighting Words

Fighting words are statements likely to cause the average addressee to fight. They must be given personally, face-to-face though.

Negligence might be enough mens rea.

Fighting words are unprotected speech.

Statutes can outlaw a subset of fighting words as long as that subset of fighting words is not content-based (based on viewpoint). (It gets strict scrutiny, even if the speech is worthless.)

Being motivated by race can be a basis for enhanced sentencing, just not an element of the crime itself.


Under the Miller test, speech is obscenity and therefore unprotected if it:

  1. Appeals to the prurient interest of the average person in the community,
  2. Is patently offensive to the community as defined by statute, and
  3. Lacks serious literary, artistic, political, or scientific value.

This includes child pornography as long as it involves actual children and not just drawings of children.

  • The purpose of the protection is to protect children from the harm in the creation of the pornography, and this is not implicated if it is drawn or computer-generated.

The Supreme Court theoretically could create new categories of unprotected speech if it was shown the founders intended such speech to be unprotected, but it is very hesitant to do so. (The Chaplinsky test is descriptive, not prescriptive.)

Commercial Speech

The Central Hudson elements for regulating commercial speech require that:

  1. The speech is lawful and not misleading (False speech is evaluated separately)
  2. The government regulation advances a substantial government interest
  3. The government objective is advanced directly by the regulation
  4. The regulation is not overly broad

Government employees' speech is not protected if it is within the scope of their employments or about personal matters at work.

You can be forced to pay for speech you disagree with if it is incident to a regulatory scheme or government speech.

Speech in criminal associations, like for conspiracies, is not protected.