Unprotected Categories of Expression

The Supreme Court quartet applies to expression protected by the First Amendment. However, there are categories of speech that are not protected by the First Amendment and schools are free to regulate such speech without worrying about First Amendment limits on its authority. Examples of these include:

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 addressed to react violently. Fighting words do not include political statements that the hearer finds deeply offensive to his or her beliefs.

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. The test for obscenity varies when minors are the intended recipients of the speech where the issue becomes whether the test is satisfied as applied to minors (e.g., the work, taken as a whole, must lack serious literary, artistic, political or scientific value for minors). This category of speech as well as nonobscene sexually explicit speech would all fall within Fraser and Hazelwood so it is not usually relevant within the school setting.