The Limitations of the Freedom of Speech

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Does the First Amendment mean anyone can say anything at any time? No. The Supreme Court has rejected an interpretation of speech without limits. Because the First Amendment has such strong language, we begin with the presumption that speech is protected. Over the years, the courts have decided that a few other public interests — for example, national security, justice or personal safety — override freedom of speech. There are no simple rules for determining when speech should be limited, but there are some general tests that help. Clear and Present Danger

Will this act of speech create a dangerous situation? The First Amendment does not protect statements that are uttered to provoke violence or incite illegal action. Justice Holmes, speaking for the unanimous Supreme Court, stated, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Fighting Words

Was something said face-to-face that would incite immediate violence? In Chaplinsky v. New Hampshire, the Supreme Court stated that the “English language has a number of words and expressions which by general consent [are] ‘fighting words’ when said without a disarming smile. … Such words, as ordinary men know, are likely to cause a fight.” The court determined that the New Hampshire statute in question “did no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace by the speaker — including ‘classical fighting words,’ words in current use less ‘classical’ but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.” Jurisdictions may write statutes to punish verbal acts if the statutes are “carefully drawn so as not unduly to impair liberty of expression.” Also see What is the...
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