Unprotected Categories of Expression

The Supreme Court excludes certain categories of speech from the protection of the First Amendment by identifying them as unprotected categories. The government is free to regulate such speech without worrying about First Amendment limits on its authority. Each category is specifically defined to limit the scope of each unprotected category. Chaplinsky v. New Hampshire defined the unprotected category of fighting words. The definitions below include fighting words and as well as 3 other major unprotected categories:

1) Fighting Words - words in a face-to-face exchange in the form of personal insults or epithets which are likely to cause the average person to whom the words are specifically addressed to react violently. Fighting words do not include general political statements that the hearer finds deeply offensive to his or her beliefs, but are not insults personally addressed to the hearer.

2) True Threats - defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”   

3) Incitement to Imminent Lawless Action - the government is free to punish such speech if the speech consists of advocacy of imminent lawless action in a situation where the speech is likely to produce such action.   

4) Obscenity - to be obscene, material must (1) be a work that the average person, applying contemporary community standards would find, taken as a whole, appeals to the prurient interest and (2) the work must depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable obscenity law, and (3) the work, taken as a whole, must lack serious literary, artistic, political or scientific value.