An extract from this paper.
Freedom of Speech and Press:
Exceptions to the First Amendment
Kathleen Ann Ruane
Legislative Attorney
September 8, 2014
Even speech that enjoys the most extensive First Amendment protection may be subject to “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Furthermore, even speech that enjoys the most extensive First Amendment protection may be restricted on the basis of its content if the restriction passes “strict scrutiny”(i.e., if the government shows that the restriction serves “to promote a compelling interest” and is “the least restrictive means to further the articulated interest”).
Unprotected Speech
The Supreme Court has identified categories of speech that are unprotected by the First Amendment and may be prohibited entirely. Among them are obscenity, child pornography, and speech that constitutes so-called “fighting words” or “true threats.” In a 2010 case, the Court made clear that it would not be likely to add more categories to the list of types of speech that currently fall outside the First Amendment’s purview, but it did not entirely rule out the possibility that other forms of unprotected speech exist. 2
1 .Supreme Court cases supporting all the prohibitions and restrictions on speech noted in this and the next paragraph are cited in footnotes accompanying the subsequent discussion of these prohibitions and restrictions.
2 .U.S. v. Stevens, 559 U.S. 460 (2010) (“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. We need not foreclose the future recognition of such additional categories to reject the Government's highly manipulable balancing test as a means of identifying them.”).
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