LOCATING THE BOUNDARY BETWEEN PROTECTED AND
What does it take, then, for speech to lose First Amendment
protection? There are well-settled exemptions to First
Amendment protection: obscenity, child pornography,
defamation, speech crimes (i.e. perjury, blackmail, solicita-tion to commit a crime), fighting words, and incitement to
imminent lawless action. 17 Supreme Court Justice Oliver
Wendell Holmes best described speech not worthy of First
Amendment protection in United States v. Schenk, 249 U.S.
47, 52 (1919):“The most stringent protection of free speech
would not protect a man from falsely
shouting fire in a theatre and causing a
panic.” The theory behind the foregoing
speech restrictions is that certain statements are “of such slight social value .
. . that any benefit that may be derived from them is clearly
outweighed by the societal interest in order and morality.” 18
Today’s highly charged environment may well test when
hate speech crosses a boundary between protected and
unprotected. If an alt-right protester outside a full synagogue
shouts “kill the Jews,” while armed with a semi-automatic
rifle, does this constitute fighting words or incitement to
imminent lawless action? Arguably, this statement may con-
stitute “fighting words” under Chaplinsky v. New Hampshire,
315 U.S. 568, 572 (1942), in which the Court said that the
state may punish those words “which by their very utterance
inflict injury or tend to incite an immediate breach of the
peace.” Fighting words are “those personally abusive epithets
which, when addressed to the ordinary citizen, are, as a matter
of common knowledge, inherently likely to provoke violent
reaction.” Cohen v. California, 402 U.S. 15, 20 (1971).
Under Brandenburg v. Ohio, 395 U.S. 444 (1969), fighting
words usually lead to incitement to imminent lawless action.
Could the alt-right’s speaker’s speech
produce such action? Does it constitute
an impermissible “true threat”? True
threats include statements by which
the speaker means to communicate
a serious expression of intent to commit an act of unlawful
violence to a particular individual or group of individuals.
Watts v. United States, 394 U.S. 705, 709 (1969) (“political
hyperbole” is not a true threat). A true threat must be a threat
to a person or group of persons with the intent of placing the
victim(s) in fear of bodily harm or death. Anyone worshipping
at the synagogue in the example above may well fear for his
What does it take, then, for speech to
lose First Amendment protection?