Freedom of Expression/Legal Codification/US exceptions
Are there any exceptions in American law to this right?
Several Supreme Court cases have placed restrictions on the right to free expression, creating exceptions to the First Amendment. For example, in Schenk v. United States, the Supreme Court ruled that free expression is not constitutionally protected when it will “to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.” The qualifications for limiting dangerous speech were later established by Brandenburg v. Ohio: “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Additionally, there is a legal exception for “fighting words”. This was decided by the Chaplinsky v. New Hampshire decision, where the court upheld that it was illegal for Walter Chaplinsky to call a police officer “a damned Fascist.” Another exception to the First Amendment is obscene language. In Miller v. California, the court clarified what qualifies as obscene language, which was described as speech that “To the average person, applying contemporary community standards, appeal to the prurient interest; Depict or describe, in a patently offensive way, sexual conduct, as specifically defined by the applicable state law, and taken as a whole, lack any serious literary, artistic, political, or scientific value.” Therefore, expression that falls under these standards may be regulated. Defamation, “a statement that injures a third party’s reputation” (Legal Information Institute, Cornell Law School), is an additional exception to freedom of expression in the United States. The standards for defamation were established in New York Times Company v. Sullivan, which claimed that in order to sue a news outlet for defamation, one must have proof that the outlet was aware of their false claims prior to publishing. Lastly, commercial speech may be regulated in order to protect consumers. In Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, the Court described a four-part test for determining whether or not the government could limit commercial speech: “At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” Ultimately, demonstrated by these numerous cases, although the United States Constitution upholds freedom of expression, there are various exceptions to the First Amendment.
References:
Schenck v. United States, 249 U.S. 48 (1919): https://supreme.justia.com/cases/federal/us/249/47/
Brandenburg v. Ohio, 395 U.S. 444 (1969): https://supreme.justia.com/cases/federal/us/395/444/
Chaplinsky v. New Hampshire, 315 U.S. 572; Chaplinsky v. New Hampshire, 315 U.S. 568 (1942): https://supreme.justia.com/cases/federal/us/315/568/
Miller v. California, 413 U.S. 37 (1973): https://supreme.justia.com/cases/federal/us/413/15/
New York Times Company v. Sullivan, 376 US 254 (1964): https://supreme.justia.com/cases/federal/us/376/254/
Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 US 566 (1980): https://supreme.justia.com/cases/federal/us/447/557/
Legal Information Institute, Cornell Law School: https://www.law.cornell.edu/wex/defamation#:~:text=Defamation%20is%20a%20statement%20that,for%20defamation%20and%20potential%20damages.