General Counsel Ronnie London and Chief Counsel Bob Corn-Revere go through each category of speech falling outside First Amendment protection to decide whether it should remain unprotected or if it’s time to “remove an arrow from the government’s quiver.”
Timestamps:
00:00 Intro
17:59 Obscenity
21:20 Child pornography
25:25 Fighting words
32:36 Defamation
41:22 Incitement to imminent lawless action
52:07 True threats
56:30 False advertising and hate speech
01:02:50 Outro
Show notes:
Court cases:
Schenck v. United States (1919)
Chaplinsky v. New Hampshire (1942)
Roth v. United States (1957)
Miller v. California (1973)
Counterman v. Colorado (2023)
Brandenburg v. Ohio (1969)
Virginia v. Barry Elton Black, Richard J. Elliot, and Jonathan O’Mara (2003)
Legislation:
The Comstock Act (1873)
The Stolen Valor Act (2005)
Edited transcript:
Editor's note: This abridged transcript highlights key discussions from the podcast. It has been lightly edited for length and clarity. Please reference the full unedited transcript for direct quotes.
Ronnie’s perspective on the categorical exceptions to free speech
NICO PERRINO, HOST: So Ronnie, why don’t you set us up here by explaining your thoughts on whether categorical exceptions to free speech are justified?
RONNIE LONDON, GUEST: I have grown increasingly uncomfortable with the idea that there is this concept of categories of unprotected speech. Each of the categories themselves are problematic, which is among the reasons that I’d love to see their elimination. It’s about trying to claw back one of the arrows in the government’s quiver.
BOB CORN-REVERE, GUEST: It requires going back into a little bit of First Amendment history to really understand how these categories came about. First of all, keep in mind that the courts and the Supreme Court in particular hadn’t found in favor of a First Amendment right for the first 141 years of our nation’s history. It wasn’t until the early 1930s, 1931 to be exact, that it began to develop what we think of as First Amendment doctrine. And so, in doing that, one of the things it did when first articulating First Amendment rights was to say, well, not all speech is protected.
I think most people who have been practicing this area or studied First Amendment law would agree that the First Amendment is not an absolute in that it doesn’t protect everything that involves the use of words. You can’t go into a bank and hand the teller a note that says “give me all your money or I’ll kill you.” It uses words, but it’s not protective. Or certain expressive acts. For example, assassination carries a great deal of political meaning but it’s not a protected act.
Fighting words
LONDON: The whole idea of having protection for free speech, one of the values of it is what we call the eternally radical idea around here, that you should resolve your differences, resolve your disagreements with words, not with force. That should include words that are directed to you that say bad things. And yet we have a fighting words doctrine that says if words upset you enough, then maybe the speech is not going to be protected. This strikes me as very much like the awful “look what you made me do” line that abusers use. I think it just puts the incentive in the wrong place. The incentive should not be on the speaker to hold their tongue. It should be on the recipient of the words to hold their fists.
I just don’t think that there’s any place in a speech protective regime to say that if it’s upsetting enough, if your emotional distress of hearing it is enough, then we can punish the speaker. That has ramifications outside of fighting words, by the way.
CORN-REVERE: We’re in violent agreement on this for fighting words because the fighting words doctrine has faded away to next to nothing. Now I will acknowledge that every now and again you will find a prosecution for fighting words, just like in 2014 in Missouri there was a prosecution for flag burning. Notwithstanding the fact that the Supreme Court in 1989 and 1990 issued two opinions saying that flag burning was a form of protected speech.
So, yeah, it does take time for these things to fade away completely, but that being said, the Court has made increasingly clear over time that speech doesn’t have to have a certain value before it's protected, which chips away at some of the foundations underlying what was applied in the area of obscenity. We also have an increasing number of cases saying that it doesn’t matter if speech upsets you, that that is protected speech. So, again, that’s all indicative of progress. And all of those exceptions that you’re talking about have grown increasingly narrow over time.
LONDON: Well then great, we’re making great progress here. We’re going to cross obscenity off the list, we’re going to cross fighting words off the list.
CORN-REVERE: Yes.
LONDON: If we can get all of them off the list, then I can drop my whole kooky idea.
The ambiguity of “incitement” in the January 6 context
LONDON: There are First Amendment lawyers, and we’ve had this debate, about whether what happened January 6 is incitement.
Here’s the thing: if incitement’s a thing, at the end of that speech, that’s either a prosecutable offense or not regardless of what happened. Even if everyone else would have kind of said, “Ugh, he’s really gone around the bend this time, let’s go home,” that would still arguably be incitement if it was likely to produce imminent lawless action – you don’t get to look at it after the fact. You don’t get to do Monday morning quarterbacking when it comes to incitement. Maybe the distance between aiding and abetting and conspiracy is that you have to have at least one overt act towards the crime before the speaker can be punished. And maybe I’m just more comfortable with that than it being based on a predictive standard.
CORN-REVERE: Maybe so. But again, let’s take the January 6 speech on the Ellipse as an example. Here you have the outgoing president speaking to supporters, not worrying about the magnetometers that they were bringing in as potential weapons. But making a number of some direct statements, some ambiguous statements. And the question was whether or not what he said to the crowd on that date could constitute incitement to attack the Capitol. I’ve seen seasoned First Amendment lawyers reach opposite conclusions on that proposition. Was former President Trump’s speech incitement or was it not?
PERRINO: But is that because they know what happened after the speech? Because if you look at the speech he’s saying “fight, fight, fight.” The whole context, you might say stop the steal, what does it mean to actually stop the steal? But then he does say “peacefully march,” right?
CORN-REVERE: There are all of those factors to consider, that’s right.
True threats, intimidation, and the balance of intent and perception
PERRINO: So, one of the big cases around true threats is Virginia v. Black, which is a case involving a Virginia statute. There was a group of Klansmen and women who burned a cross on private property. That burning of the cross was prima facia evidence, according to the statute, of intimidation or a true threat.
CORN-REVERE: The statute was essentially upheld, that you can prohibit burning a cross with the intent to intimidate. The problem with the statute, though, was that it took burning the cross itself as prima facia evidence.
PERRINO: So, you didn’t even need to look at intent?
CORN-REVERE: That’s right. And the Court said no, you really can’t do that. That you actually have to show some intent, which is something that the Supreme Court last term in Counterman v. Colorado underscored in holding that you really do have to have criminal culpability in showing intent to have this bad result.
PERRINO: So, Elena Kagan in that case wrote that the prosecutors have to show that the defendant had some subjective understanding of the threatening nature of his statement. And the statement shows that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.
CORN-REVERE: That’s right, and drew heavily on New York Times v. Sullivan and what reckless disregard means in setting a high bar for what kind of recklessness is required.
PERRINO: So, Ronnie, presumably you wouldn’t say that calling in to a school and saying there’s a bomb in the school should be protected speech, right?
LONDON: No.
PERRINO: Okay, so you’d have a categorical exception for true threats.
LONDON: The idea here isn’t to say that everything that falls into these definitional categories should be protected and it’s okay. That’s really not the point here. Here’s a quote, “Words do not make the actor liable unless together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact with this person.” Sounds like true threat more or less, right?
CORN-REVERE: What are you reading from?
LONDON: This is a restatement of torts with respect to what assault is. Again, this is kind of another area where –
PERRINO: Oh, so what you’re saying is that a true threat is just another way of describing an assault.
LONDON: Either it’s an assault or it’s not.
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