“The First Amendment Isn’t Absolute.” Sure, But So What?

Understanding The Limits of The First Amendment And How They Apply To Free Speech Analysis

It’s inevitable. Whenever there’s a debate over whether the government can punish or regulate some instance of controversial speech in America, someone pipes up with “well, actually, the First Amendment is not absolute.” Sometimes they say “well, in fact, there are limits to the First Amendment,” or “the First Amendment doesn’t protect all speech,” or, if they really hate me and want me to suffer, “you can’t shout fire in a crowded theater.”

The proposition that the First Amendment isn’t absolute, that it has established limits, is true, well-known, and (at least now that Hugo Black is dead) practically undisputed. But this observation is rarely useful in resolving a dispute over whether any particular speech is outside of First Amendment protection. Too often people use it as an argument that it’s not: they use it to suggest “the First Amendment doesn’t protect all speech, therefore it’s perfectly plausible to suppose the First Amendment doesn’t protect this speech.” But that’s not how the First Amendment works; that’s not how any of this works. That’s like saying “some felidae are Bengal tigers, so it’s perfectly plausible that the felidae shoving its ass in my face and demanding to be fed is a Bengal tiger. Can you show me a published opinion specifically saying this isn’t a Bengal tiger?”

In short, “actually, the First Amendment is not absolute” is most often deployed to make a point that’s false. So, what’s true? How can the recognition that the First Amendment has limits inform, sensibly, a discussion of whether any particular speech is protected or any specific government action is prohibited?

Let’s discuss — and bear in mind we are squarely in the realm of Free Speech Rights, not Free Speech Culture or Speech Decency.

The First Amendment Has Exceptions

So, right off the bat, let’s acknowledge this is true — the First Amendment has exceptions. Hooray! Common ground.

But Those Exceptions Are Established And Known — Almost Certainly A Closed Set

If I say “I have kids” and a stranger stands up and says, “well, then, I could be one of your kids,” the answer would be no, you almost certainly could not. We know who my kids are, and even if I might have other kids out there, which for the sake of readers who are my wife I do not, the plausible set of potential kids is very limited. We could tell, for instance, that if someone is older than, say, 40, they can’t be my kid, and that if someone was conceived in this country when I was in an entirely different country,¹ that could not be my kid. Similarly, just because exceptions to the First Amendment exist, that does not mean that any situation you notice is a First Amendment exception. We know what the First Amendment exceptions are, and, like children, we know when it’s very unlikely any new ones will be made.

The Supreme Court has repeatedly listed the First Amendment exceptions. In 2010, in a very important but not particularly well known case called United States v. Stevens, the Supreme Court offered one of its periodic summaries:

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)—including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254–255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447–449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)—are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571–572 (1942).

So, there you have it: obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. Throw in true threats - which was left out of this list for some reason - and child pornography, and you’ve got the categories. Note that the Court specifically identifies them as well-known and historic, not as in flux.

But wait, you say. That doesn’t mean new ones can’t be made. Can’t new categorical exceptions be made?

No, said the Supreme Court in Stevens. In that case the government wanted the Court to create a new categorical exception for depictions of animal cruelty, which is bad, and said that the Court had created a new First Amendment exception for child pornography in New York v. Ferber, so why couldn’t it just create a new one for depictions of animal cruelty?

No, said the Court. First of all, the Court said that it did not simply create a new First Amendment exception for child pornography, but had found that child abuse is integral to child pornography and therefore it falls into the integral-to crime exception, and that maybe there are more historical exceptions, but they don’t know of any:

Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that “depictions of animal cruelty” is among them.

So that — in an 8-1 decision — is a very clear statement that the Supreme Court isn’t creating new exceptions right now. Could it? Yes. Could one make an argument that the Supreme Court is full of shit and it totally did create a new categorical exception in Ferber and could so so again? Yes.

But the point is that now the very strong weight of authority is against creating new exceptions. An argument that doesn’t engage that fact isn’t serious.

No, The Court Won’t Create New Exceptions Because of How Very Bad Some Speech Is

At this point it’s common for people to say “well, the Supreme Court may have said that in 2010, but they didn’t consider how bad COVID disinformation/Fox News propaganda/drag story hour/Avatar is.”

Sure, it’s possible that the Supreme Court could be presented with truly horrific speech and, because there are new people on the Court, or because the speech is really bad, decide to create a new First Amendment exception after all.

But it’s important to understand that in Stevens, the Court said that this process can’t happen by balancing the harm of speech against its value. Again, in that case the government wanted the Court to recognize a new First Amendment exception for depictions of animal cruelty, and argued that it was “low-value” speech outweighed by the interest in not being mean to animals. The Court really didn’t like that:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

   As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

So, when you consider the argument “the Supreme Court will make a new exception for this thing because this thing is really bad,” you have to keep in mind that the Supreme Court said very specifically 8-1 that it wouldn’t do that. It’s effectively like saying “well what if we had a completely different legal system?”

The Established First Amendment Exceptions Aren’t Whatever You Want Them To Be

Even if they accept that there’s a limited set of First Amendment exceptions, people often try to force speech into exceptions where it doesn’t fit. The exceptions to the First Amendment are, like the Supreme Court said, “familiar.” That means there’s a huge volume of cases interpreting them. Their meaning is not absolutely immutable, but nor is flexible.

Incitement is a popular example. Incitement is a First Amendment exception. But incitement means “speech that is intended, and likely, to cause imminent lawless action.” All of those words mean things, things defined by decades of court decisions. They don’t mean whatever you want them to mean — they specifically don’t mean “saying things that are bad for America on TV.” Might the courts gradually develop their understanding of one of these words - for instance, by developing a broader understanding of “imminence” based on an internet culture? Yes, over time, through a familiar process. But the point is that you must engage the existing law on what “incitement” means to be accurate — you can’t just declare it to mean whatever you want, and expect that to matter in court. The Supreme Court has been saying for almost a century that First Amendment exceptions are “well-defined and narrowly limited.” The fact that the words in the names of the exceptions — like “incitement,” or “threat” — have flexible colloquial meanings does not signify that the legal meaning of those exceptions is flexible. It isn’t.

So What?

Why does this matter? It matters because it’s good for Americans to know, and understand, our civil rights and the powers and limitations of our government. We’re bitterly divided as a nation. Much speech is controversial, much speech is despised by someone. We’re under constant pressure to accept new limits on speech. It’s good to argue about these things. But the argument should be reality-based. “The First Amendment isn’t absolute,” used as a justification for new exceptions, and untethered from the law, isn’t reality-based.

1. If this seems like a weird example, ask me the story of the time my wife went to the mailbox and came back with a letter asking me for child support for a ten-year-old named, if memory serves, Carlos. It resolved satisfactorily but not without some tension.