I applaud your concise and direct explanation of the exceptions to the First Amendment. It would, however, be much more valuable if a significant portion of the adult population in this country was capable of understanding what you wrote or even of understanding how our justice system is supposed to work. Most schools no longer teach "civics," leaving a substantial part of our citizenry ignorant about our form of government and the cleverness of its design. [I recall my high school civics class, although not fondly, but only because the teacher required us to walk down to city hall and listen to some guy who was running for president. When we returned to class, he asked for our reactions. My gut instinct suggested that the guy shouldn't be trusted, and I said so. Yup, I got sent to the principal's office, and you've now deduced that the candidate was Richard Nixon. Probably learned more from that episode than from any other part of that class...]
How have 20 comments gone by and nobody asked you the story of the time your wife went to the mailbox and came back with a letter asking you for child support for a ten-year-old probably named Carlos?
this is 100% correct, yet so was the idea that Roe was settled law.
In other words, the court can, if it wishes, do whatever the f it wants with no consequences.
there is no evidence that the court wants to alter its interpretation of the 1st, but it CAN. and flip you off in the process, just because it feels like it some term
I think ordinary civilians deserve some compassion about their failure to understand Constitutional interpretation and the First Amendment in particular since we live in a country where the Supreme Court has been taken over by a bunch of religious extremist hacks who have no problem randomly applying law from the Middle Ages to overturn Roe, interfering in a state’s recount of electoral votes to anoint the proper winner . . . While saying “don’t try this at home kids, this train only!” . . . while also finding that government can punish a kid for a “Bong Hits for Jesus” sign and that kids are not free from compulsory drug testing to participate in extracurriculars with no probable cause or even reasonable suspicion of drug use. In other words, the general public correctly intuits that we no don’t have a system of laws so much as rule by a super special counsel of unelected elders, most of whom belong to a distinct minority sect and who got their seats specifically because of their proven willingness to start with the desired outcome and work backwards to find reasoning.
So I have started feeling more compassion for ordinary folks who think that First Amendment exceptions can be created ad hoc. I certainly can’t categorically say that they are wrong.
I'm not a lawyer nor an American, so I'm sure I'm missing something, but from my naïve standpoint I have a hard time understanding this reasoning: "[the court] had found that child abuse is integral to child pornography and therefore it falls into the integral-to crime exception..."
If this summary be correct, then naïvely, it looks as though the court has committed a logical howler: they've observed that crime is integral to certain speech, and concluded that said speech falls under an exception for speech integral to crime. But "A is integral to B" does not imply that "B is integral to A".
There are lots of laws that limit speech that aren't in the exception list, for instance perjury, copyright and trademark law, laws of confidentiality, the law of contract (if I sign an endorsement contract, or an NDA, then that limits my speech), espionage law and the laws governing classified documents
When somebody incites a riot, or tries to stop an election from taking place, nobody is trying to stop speech. (The speech has usually taken place, so the question doesn't come up.)
If somebody cracks a safe and gets caught they won't be charged with using a hammer and chisel.
Speech is as incidental to treason as the hammer and chisel are to blowing the door off a safe.
I feel like there are two roles "the first ammendment isn't absolute" plays in discussions. The first is to suggest: well if we recognize some exceptions to the principle of free speech you can't (tho u could) claim that any exception is unjustified so you have to actually debate the costs and benefits of allowing this kind of speech.
I have mixed feelings about this. OTOH it kinda functions as an antidote to our attitude of: whatever the framers said must be right assumption. OTOH it doesn't acknowledge our vast amount of historical evidence that limitations on speech must be approached carefully.
The other place I see it is more of an argument from ignorance: well it has exceptions and I don't know what they are and you probably don't either so maybe this is one of them.
Great stuff, as usual! This is an evergreen piece I look forward to revisiting, quoting, and sending to people who need to learn a thing or two (or three). The one thing I’d add to this list of non-protected speech would be messing with copyright/trademark protections. The court has described copyright fair use (among other things) as a First Amendment “safety valve” (See: Eldred v. Ashcroft) but IP definitely gets its own 1A carve-out that people should talk about more.
Alito used the “fire in a crowded theater” punchline, didn’t he?
The problem is not that exceptions (very narrow) exist to the First Amendment. It’s almost the case that most of the First Amendment lawyers cannot apply the precedents to a case under trial.
“Probably not a 1st Amendment violation,” seems to be a general prognosis, which of course is a safe bet.
To me, a layman, it has become “whatever the SCOTUS says, at the moment.”
I think you do an excellent job of explaining that there are very narrow exceptions and citing the exact words from decisions past.
What would be most helpful would be analysis of cases where the exception is met. Like what would have needed to happen to make Trump or Brooks’s speeches incitement on January 6th.
An interesting essay and a lively comment section. I'm curious about the 'obscenity' exception...in the current online era, it seems that what would once be considered obscene language or pictures are now commonplace.Why can't it be argued that intentional Covid disinformation which leads to grave illness or death is an 'obscenity' vs certain unpleasant vulgarities? I understand the 'slippery slope' argument, as well as the 'more speech is the answer" argument. The issue that I see is this simply ignores the very real but decimation of the fabric of our society to preserve the greatest possible amount of speech. With a polarized society, where there is increasingly no social consequences for egregious speech (Covid lies, vaccine lies, hate speech, etc), more speech isn't working.
Great article. Where does “you can’t yell fire in a crowded room” fit in? Incitement? That is the exception I hear most of used to restrain offensive speech.
I applaud your concise and direct explanation of the exceptions to the First Amendment. It would, however, be much more valuable if a significant portion of the adult population in this country was capable of understanding what you wrote or even of understanding how our justice system is supposed to work. Most schools no longer teach "civics," leaving a substantial part of our citizenry ignorant about our form of government and the cleverness of its design. [I recall my high school civics class, although not fondly, but only because the teacher required us to walk down to city hall and listen to some guy who was running for president. When we returned to class, he asked for our reactions. My gut instinct suggested that the guy shouldn't be trusted, and I said so. Yup, I got sent to the principal's office, and you've now deduced that the candidate was Richard Nixon. Probably learned more from that episode than from any other part of that class...]
How have 20 comments gone by and nobody asked you the story of the time your wife went to the mailbox and came back with a letter asking you for child support for a ten-year-old probably named Carlos?
this is 100% correct, yet so was the idea that Roe was settled law.
In other words, the court can, if it wishes, do whatever the f it wants with no consequences.
there is no evidence that the court wants to alter its interpretation of the 1st, but it CAN. and flip you off in the process, just because it feels like it some term
I think ordinary civilians deserve some compassion about their failure to understand Constitutional interpretation and the First Amendment in particular since we live in a country where the Supreme Court has been taken over by a bunch of religious extremist hacks who have no problem randomly applying law from the Middle Ages to overturn Roe, interfering in a state’s recount of electoral votes to anoint the proper winner . . . While saying “don’t try this at home kids, this train only!” . . . while also finding that government can punish a kid for a “Bong Hits for Jesus” sign and that kids are not free from compulsory drug testing to participate in extracurriculars with no probable cause or even reasonable suspicion of drug use. In other words, the general public correctly intuits that we no don’t have a system of laws so much as rule by a super special counsel of unelected elders, most of whom belong to a distinct minority sect and who got their seats specifically because of their proven willingness to start with the desired outcome and work backwards to find reasoning.
So I have started feeling more compassion for ordinary folks who think that First Amendment exceptions can be created ad hoc. I certainly can’t categorically say that they are wrong.
I love how the best story ends up as a mere footnote.
I'm not a lawyer nor an American, so I'm sure I'm missing something, but from my naïve standpoint I have a hard time understanding this reasoning: "[the court] had found that child abuse is integral to child pornography and therefore it falls into the integral-to crime exception..."
If this summary be correct, then naïvely, it looks as though the court has committed a logical howler: they've observed that crime is integral to certain speech, and concluded that said speech falls under an exception for speech integral to crime. But "A is integral to B" does not imply that "B is integral to A".
What am I missing?
There are lots of laws that limit speech that aren't in the exception list, for instance perjury, copyright and trademark law, laws of confidentiality, the law of contract (if I sign an endorsement contract, or an NDA, then that limits my speech), espionage law and the laws governing classified documents
When somebody incites a riot, or tries to stop an election from taking place, nobody is trying to stop speech. (The speech has usually taken place, so the question doesn't come up.)
If somebody cracks a safe and gets caught they won't be charged with using a hammer and chisel.
Speech is as incidental to treason as the hammer and chisel are to blowing the door off a safe.
I feel like there are two roles "the first ammendment isn't absolute" plays in discussions. The first is to suggest: well if we recognize some exceptions to the principle of free speech you can't (tho u could) claim that any exception is unjustified so you have to actually debate the costs and benefits of allowing this kind of speech.
I have mixed feelings about this. OTOH it kinda functions as an antidote to our attitude of: whatever the framers said must be right assumption. OTOH it doesn't acknowledge our vast amount of historical evidence that limitations on speech must be approached carefully.
The other place I see it is more of an argument from ignorance: well it has exceptions and I don't know what they are and you probably don't either so maybe this is one of them.
Great stuff, as usual! This is an evergreen piece I look forward to revisiting, quoting, and sending to people who need to learn a thing or two (or three). The one thing I’d add to this list of non-protected speech would be messing with copyright/trademark protections. The court has described copyright fair use (among other things) as a First Amendment “safety valve” (See: Eldred v. Ashcroft) but IP definitely gets its own 1A carve-out that people should talk about more.
Alito used the “fire in a crowded theater” punchline, didn’t he?
The problem is not that exceptions (very narrow) exist to the First Amendment. It’s almost the case that most of the First Amendment lawyers cannot apply the precedents to a case under trial.
“Probably not a 1st Amendment violation,” seems to be a general prognosis, which of course is a safe bet.
To me, a layman, it has become “whatever the SCOTUS says, at the moment.”
I think you do an excellent job of explaining that there are very narrow exceptions and citing the exact words from decisions past.
What would be most helpful would be analysis of cases where the exception is met. Like what would have needed to happen to make Trump or Brooks’s speeches incitement on January 6th.
Appropriate to use the metaphor of "children of highly unlikely provenance" here on Christmas Eve
An interesting essay and a lively comment section. I'm curious about the 'obscenity' exception...in the current online era, it seems that what would once be considered obscene language or pictures are now commonplace.Why can't it be argued that intentional Covid disinformation which leads to grave illness or death is an 'obscenity' vs certain unpleasant vulgarities? I understand the 'slippery slope' argument, as well as the 'more speech is the answer" argument. The issue that I see is this simply ignores the very real but decimation of the fabric of our society to preserve the greatest possible amount of speech. With a polarized society, where there is increasingly no social consequences for egregious speech (Covid lies, vaccine lies, hate speech, etc), more speech isn't working.
Great article. Where does “you can’t yell fire in a crowded room” fit in? Incitement? That is the exception I hear most of used to restrain offensive speech.
A lovely holiday gift to your fans/followers. Thanks.
Once again your pearls of wisdom, what a gift you truly are!