Chapter Six

The First Amendment Part Two:

Free Speech and Other Protections

Chapter Outline

A. Overview

B. Free Speech

Threats
Incitement
Fighting Words & Disorderly Conduct
Hate Speech
Defamation
Fraud & Advertising
Obscenity
Symbolic Speech

C. Freedom of the Press

D. Freedom to Assemble and Petition the Government

E. Freedom of Association

A. Overview

Chapter Five introduced the First Amendment, placed it in historical context, and examined cases that protect religion through the Establishment Clause and the Free Exercise Clause. This chapter continues examining the First Amendment and starts with another look at the amendment’s actual words.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

As in the prior chapter, analyzing the First Amendment clause by clause makes its many protections easier to see. This chapter will examine:

Free Speech - The government cannot restrict free speech, generally speaking, and this includes speech that is symbolic in nature, as well as advertising. There are exceptions to this general rule for issues regarding public safety, obscenity, fraud, defamation, and other activities. Laws affecting communications using the Internet and other forms of technology are analyzed under the free speech clause.
Freedom of the Press — The clause refers to the right of journalists and the media to publish information and opinions without government interference. Like all amendments, there are narrow exceptions to this right.
Freedom to Assemble and Petition the Government — U.S. citizens have the right to gather peacefully, demonstrate, and ask the government to address their concerns. The government can establish reasonable time, place, and manner restrictions on these activities.
Freedom of Association — This right is inferred from the First Amendment, rather than explicitly stated, and protects the ability to join, form, or leave groups and organizations without government restriction.

B. Free Speech

The First Amendment states, "Congress shall make no law ... abridging the freedom of speech..." . This language guarantees that individuals can express their ideas, opinions, and beliefs without government interference. However, this right is not absolute. Courts have long recognized that some forms of expression cross into unlawful territory, such as threats, incitement, fighting words, disorderly conduct, hate speech, defamation, fraud, obscenity, and some forms of advertising. The Supreme Court has also extended protection to symbolic speech, which consists of nonverbal acts that convey a message, like wearing an armband or burning a flag. Understanding the boundaries of free speech helps clarify how the Constitution balances individual liberty with the protection of others and maintaining public order.

Threats

The First Amendment does not protect statements that meet the criteria for criminal threats. For example, under Massachusetts Laws Chapter 275 § 2, someone can be found guilty of criminal threats if the prosecutor proves that the defendant (1) expressed an intent to harm someone or their property; (2) meant for that threat to be communicated to a specific person; (3) threatened an act that would be a crime if carried out; and (4) did so in a way that would reasonably cause the victim to fear the threat could actually be carried out. This criteria is very similar to other state laws that exclude criminal threats from First Amendment protection. At the federal level, several statutes criminalize threats, including interstate threats, threats against the President and other federal officials, and bomb threats (18 U.S.C. §§ 875(c), 871, 115, 844(e)).

In Virginia v. Black (2003), the U.S. Supreme Court ruled that states may prohibit “true threats.” The Court defined a true threat as a statement or symbolic act that communicates a serious intent to commit unlawful violence against a specific person or group. The case involved three defendants convicted under a Virginia law that made it a crime to burn a cross “with the intent to intimidate” and presumed that any cross burning automatically showed such intent. The Supreme Court held that a state may prohibit cross burning when it is intended to intimidate, but the Virginia statute was unconstitutional because it treated all cross burnings as automatic proof of intimidation. The Court explained that cross burning at a private Klan rally, while deeply offensive, may be considered protected symbolic speech if it expresses ideology rather than a direct threat, but it becomes a true threat when it is directed at individuals with the purpose of causing fear or intimidation.

Over the next decade, as online communication increased, courts were confronted with cases involving alleged threats made on social media, raising new questions about intent and context. In Elonis v. United States (2015), the Supreme Court considered whether a person could be convicted of making threats on social media without proof of intent to threaten. The case involved a defendant who posted a series of violent messages on Facebook about his ex-wife, co-workers, and law enforcement, often framing the messages as rap lyrics. He was convicted under a federal law that prohibited transmitting threats across state lines (18 U.S.C. § 875(c)). The Supreme Court overturned his conviction, ruling that the prosecution failed to prove the defendant had the required mental state to be convicted. The Court explained that it is not enough for a reasonable person to view the words as threatening. There must be evidence that the speaker subjectively intended, or at least knew, their words would be perceived as a threat.

The Elonis decision laid the groundwork for Counterman v. Colorado (2023), which involved a man who sent hundreds of unwanted and disturbing Facebook messages to a local musician over several years, causing her to fear for her safety. He was convicted under a Colorado law that did not require proof of intent to threaten. The Supreme Court overturned his conviction, holding that the critical issue is whether the prosecution can prove that the speaker’s mental state involved a conscious disregard of the risk that the statement would be perceived as a threat. This ruling clarified the current constitutional standard for regulating threatening speech, including speech conveyed through social media, while safeguarding First Amendment rights.

Courts have consistently found true threats where a speaker sends repeated, targeted messages that include specific threats of violence, references to weapons, or information showing knowledge of the victim’s location. In these cases, the speech goes beyond offensive or disturbing expression and is no longer protected by the Constitution because it is intended to place the target in fear of imminent harm. For example, in October of 2025, the Associated Press reported that a man in Alabama was federally charged with making threatening phone calls and text messages to rabbis and other religious leaders across several states, including statements such as, “I want you to die.” Authorities seized firearms and found evidence that he possessed personal information about the individuals he targeted. This case illustrates the type of conduct that prosecutors and courts have treated as a true threat, rather than protected speech. (Chandler, 2025)

Even if a criminal conviction for threatening speech is not viable, a person targeted by the threats may still pursue relief in civil court. Victims can file lawsuits for intentional or negligent infliction of emotional distress or other suitable claims. These civil actions provide a way to seek monetary damages and accountability, even when the speech does not meet the high evidentiary threshold for criminal prosecution.

Incitement

Courts are also concerned about incitement, which refers to speech that encourages or provokes others to engage in illegal acts or violence. Before the modern doctrine of incitement was firmly established, the Supreme Court addressed dangerous speech in Schenck v. United States (1919). In that case, the Court upheld the conviction of Charles Schenck, a socialist who distributed leaflets urging men to resist the military draft during World War I. He was prosecuted under the Espionage Act of 1917, which made it a crime to obstruct military recruitment or interfere with the war effort. Writing for the Court, Justice Oliver Wendell Holmes Jr. explained that freedom of speech does not protect expressions that create a “clear and present danger” of causing significant harm to the nation, such as undermining its ability to defend itself. Justice Holmes illustrated this principle with his famous statement that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater and causing a panic.” This decision laid the foundation for later cases by recognizing that speech posing an immediate and serious threat to public safety or national security may fall outside First Amendment protection.

In Brandenburg v. Ohio (1969), the Supreme Court established the modern test for incitement, which greatly expanded free speech protections. The case involved Clarence Brandenburg, a Ku Klux Klan leader in Ohio, who was convicted under a state law after a TV crew filmed him making racist remarks and vague threats of “revengeance [sic]" against the government. The Court overturned his conviction and replaced the older, broader “clear and present danger” test from Schenck with a new, narrower standard. Speech can be punished only if it is directed to inciting or producing imminent lawless action and is likely to produce such action. This modern standard is called the imminent lawless action test, which ensures that offensive or inflammatory expression remains protected unless it is both intended and likely to cause immediate unlawful behavior.

Fighting Words & Disorderly Conduct

Laws addressing disorderly conduct exist in all fifty states, though they may be labeled as breach of the peace or disturbing the peace in some jurisdictions. Generally, these laws prohibit conduct that disrupts public order or tranquility, such as fighting, threats, or behavior likely to provoke violence (Black’s Law Dictionary, 12th ed., 2024). They are not designed to criminalize speech that is merely offensive or unpopular. At times, legislatures and law enforcement face challenges when trying to balancing the need to maintain public order with the protection of individual rights

In Chaplinsky v. New Hampshire (1942), the U.S. Supreme Court established the fighting words doctrine, one of the earliest recognized limits on free speech aimed at preventing public disorder. The case arose when Walter Chaplinsky, a Jehovah’s Witness, was distributing religious pamphlets on a public street in Rochester, New Hampshire. After angry exchanges with people who were passing by, a crowd started to gather, and a city marshal warned Chaplinsky to stop causing a disturbance. In response, the defendant shouted insults, calling the marshal a “damned fascist” and a “racketeer.” Chaplinsky was arrested and convicted under a state law prohibiting offensive, derisive, or annoying words in public. The Supreme Court upheld his conviction, ruling that certain narrowly defined types of speech, such as fighting words, which are “likely to provoke the average person to retaliation and cause a breach of the peace," are not protected by the First Amendment because they contribute nothing to public discourse and cause immediate violence.

A few years later, in Terminiello v. Chicago (1949), the Supreme Court began to narrow its application of the fighting words doctrine. Father Arthur Terminiello, a suspended Catholic priest, delivered a fiery speech in Chicago that sharply criticized various racial, political, and religious groups, provoking hostility among listeners inside and outside the auditorium. As tensions escalated and violence broke out, police arrested him under a city ordinance that punished speech likely to cause a breach of the peace. The Supreme Court overturned his conviction, holding that the ordinance was unconstitutional because it punished speech merely for provoking anger or unrest, rather than for creating a clear and present danger. The Court emphasized that the function of free speech is often to “invite dispute” and “stir people to anger,” and that the proper response to a hostile audience is crowd control, not silencing the speaker. This decision clarified that the fighting words doctrine recognized in Chaplinsky does not permit a “heckler’s veto,” and that speech may not be punished simply because it provokes hostility or unrest.

The Court leaned more decisively toward protecting speech and protest rights in Edwards v. South Carolina (1963), a case involving nearly 200 African American students who peacefully marched to the South Carolina State House to protest racial segregation. Police ordered them to disperse when onlookers began expressing hostility, and when the students refused, they were arrested and convicted of breach of the peace and disorderly conduct. The Supreme Court unanimously overturned their convictions, ruling that the arrests violated the students’ First Amendment rights to free speech, peaceful assembly, and petitioning the government for redress of grievances. The Court held that the state cannot criminalize peaceful protest merely because it provokes hostility among bystanders. As Justice Potter Stewart wrote, “The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views.” This ruling solidified the principle that peaceful public demonstrations are fully protected under the First Amendment.

Finally, in Gooding v. Wilson (1972), the Supreme Court further narrowed the fighting words doctrine. A Vietnam War protester had been convicted under a Georgia law for shouting insults at police officers, but the Court struck down the statute as too broad because it punished speech beyond true fighting words. The justices explained that laws restricting speech must be precisely written to cover only direct, personal insults likely to provoke immediate violence. As politics become more divided and technology keeps advancing, this area of the law will keep changing.

Hate Speech

Hate speech generally refers to expression that attacks, demeans, or incites hatred against individuals or groups based on characteristics like race, religion, ethnicity, gender, sexual orientation, or disability (American Bar Association, Hate Speech and the First Amendment, 2021). Although such speech is deeply offensive, the U.S. Supreme Court has consistently ruled that there is no general hate speech exception to the First Amendment. Speech cannot be punished simply because it expresses hatred or prejudice, unless it falls into a recognized unprotected category such as true threats, incitement to imminent violence, fighting words, or other exceptions mentioned in this chapter. The guiding principle is that the government cannot restrict expression based on its content or viewpoint. As reaffirmed in Virginia v. Black (2003), even hateful or bigoted ideas are protected so long as they do not cross the line into direct threats or incitement.

Defamation

Speech that damages someone’s reputation raises difficult First Amendment issues. The Supreme Court has struggled to balance free expression with the right to protect one’s good name. Defamation refers to false statements that injure someone’s reputation by exposing them to public hatred, ridicule, or contempt. When such statements are written or published, it is called libel, and when they are spoken, it is known as slander (Restatement [Seconds] of Torts § 558 ). Although defamation lawsuits allow individuals to seek monetary compensation for harm to one's reputation, the First Amendment limits how far these laws can go in order to prevent the suppression of open debate.

The modern constitutional standard for defamation began with New York Times Co. v. Sullivan (1964). The case arose after an Alabama public official sued The New York Times over a civil rights fundraising advertisement that criticized the treatment of civil rights protesters by local police and contained minor factual inaccuracies. The official won the case at trial, and the verdict was upheld by the Alabama Supreme Court. Upon further appeal, the United States Supreme Court unanimously overturned the libel judgment, holding that a public official cannot prevail in a defamation case unless they prove the statement was made with “actual malice,” meaning it was published with knowledge of its falsity or with reckless disregard for the truth. The Court reasoned that open debate about public issues must be “uninhibited, robust, and wide-open,” even if it includes “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” This decision gave the press broad protection to report on matters of public concern without fear of being punished for honest mistakes.

Three years later, in Curtis Publishing Co. v. Butts (1967), decided alongside Associated Press v. Walker, the Court extended the “actual malice” standard established in New York Times Co. v. Sullivan beyond public officials to include public figures, such as prominent coaches, celebrities, and others who command substantial public attention. The case involved a Saturday Evening Post article accusing University of Georgia football coach Wally Butts of conspiring to fix a football game. The Court ruled that because Butts was a well-known public figure with significant access to the media to defend himself, he was also required to prove actual malice to recover damages. This ruling established that public figures, like government officials, are subject to greater public scrutiny and therefore face a higher burden when bringing defamation claims.

This brings us to a different kind of challenge: what happens when the target of offensive speech is a public figure, and the words may have been intended to hurt, but they were clearly meant as a joke or parody? The Supreme Court addressed this question in Hustler Magazine v. Falwell (1988), a case involving a controversial satire that pushed the limits of free expression. Please read the excerpt from the decision below to see how the Court balanced freedom of speech with claims of defamation and emotional harm. Please be advised that the case involved graphic descriptions of sexual activity.

Image 6.1

(Famous Trials, Parody Ad)

Landmark Case Spotlight:

Hustler Magazine, Inc. v. Falwell (1988)

Case Excerpt (Not Full Case)

Click here for full text.

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. (Editor note: Hustler Magazine was a nationally distributed adult entertainment magazine known for its sexually explicit content and provocative political satire. It was published by Larry Flynt, who often used the magazine to challenge social norms and push the boundaries of free speech. Jerry Fallwell was a well-known evangelical televangelist at the time these events took place. Falwell and Flynt often traded insults in the press.)

Respondent Jerry Falwell, a nationally known minister who has been active as a commentator on politics and public affairs, sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of privacy, libel, and intentional infliction of emotional distress. The District Court directed a verdict against respondent on the privacy claim, and submitted the other two claims to a jury. The jury found for petitioners on the defamation claim, but found for respondent on the claim for intentional infliction of emotional distress and awarded damages. We now consider whether this award is consistent with the First and Fourteenth Amendments of the United States Constitution.

The inside front cover of the November, 1983, issue of Hustler Magazine featured a "parody" of an advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled "Jerry Falwell talks about his first time." This parody was modeled after actual Campari ads that included interviews with various celebrities about their "first times." Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of "first times."

Copying the form and layout of these Campari ads, Hustler's editors chose respondent as the featured celebrity and drafted an alleged "interview" with him in which he states that his "first time" was during a drunken incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays respondent and his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when he is drunk. In small print at the bottom of the page, the ad contains the disclaimer, "ad parody -- not to be taken seriously." The magazine's table of contents also lists the ad as "Fiction; Ad and Personality Parody."

Soon after the November issue of Hustler became available to the public, respondent brought this action in the United States District Court for the Western District of Virginia against Hustler Magazine, Inc., Larry C. Flynt, and Flynt Distributing Co., Inc. Respondent stated in his complaint that publication of the ad parody in Hustler entitled him to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. The case proceeded to trial. At the close of the evidence, the District Court granted a directed verdict for petitioners on the invasion of privacy claim. The jury then found against respondent on the libel claim, specifically finding that the ad parody could not "reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated."

The jury ruled for respondent on the intentional infliction of emotional distress claim, however, and stated that he should be awarded $100,000 in compensatory damages, as well as $50,000 each in punitive damages from petitioners. Petitioners' motion for judgment notwithstanding the verdict was denied.

On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment against petitioners. The court rejected petitioners' argument that the "actual malice" standard of New York Times Co. v. Sullivan, must be met before respondent can recover for emotional distress. The court agreed that, because respondent is concededly a public figure, petitioners are "entitled to the same level of first amendment protection in the claim for intentional infliction of emotional distress that they received in [respondent's] claim for libel."

This case presents us with a novel question involving First Amendment limitations upon a State's authority to protect its citizens from the intentional infliction of emotional distress. We must decide whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most. Respondent would have us find that a State's interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do.

At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a "false" idea.

The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large" . Justice Frankfurter put it succinctly in Baumgartner v. United States, when he said that "[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures." Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public officials will be subject to "vehement, caustic, and sometimes unpleasantly sharp attacks," New York Times, supra, at 376 U. S. 270. "[T]he candidate who vaunts his spotless record and sterling integrity cannot convincingly cry 'Foul!' when an opponent or an industrious reporter attempts to demonstrate the contrary."

Of course, this does not mean that any speech about a public figure is immune from sanction in the form of damages. Since New York Times Co. v. Sullivan(1964), we have consistently ruled that a public figure may hold a speaker liable for the damage to reputation caused by publication of a defamatory falsehood, but only if the statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not."

Respondent argues, however, that a different standard should apply in this case because, here, the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication. In respondent's view, and in the view of the Court of Appeals, so long as the utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress, it is of no constitutional import whether the statement was a fact or an opinion, or whether it was true or false. It is the intent to cause injury that is the gravamen of the tort, and the State's interest in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this type.

Generally speaking, the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most, if not all, jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently "outrageous." But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment. In Garrison v. Louisiana, we held that, even when a speaker or writer is motivated by hatred or ill-will, his expression was protected by the First Amendment: "Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth. Thus, while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures. Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject. Webster's defines a caricature as "the deliberately distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect." The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events -- an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. One cartoonist expressed the nature of the art in these words:

"The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting, and is always controversial in some quarters."

Several famous examples of this type of intentionally injurious speech were drawn by Thomas Nast, probably the greatest American cartoonist to date, who was associated for many years during the post-Civil War era with Harper's Weekly. In the pages of that publication Nast conducted a graphic vendetta against William M. "Boss" Tweed and his corrupt associates in New York City's "Tweed Ring." It has been described by one historian of the subject as "a sustained attack which in its passion and effectiveness stands alone in the history of American graphic art." M. Keller, The Art and Politics of Thomas Nast 177 (1968).

Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's characterization of Presidential candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The Royal Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln's tall, gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them.

Respondent contends, however, that the caricature in question here was so "outrageous" as to distinguish it from more traditional political cartoons.

There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description "outrageous" does not supply one. "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. An "outrageousness" standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.

"[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas."

Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to limitations. We recognized in Pacifica Foundation that speech that is "vulgar,' `offensive,' and `shocking'" is "not entitled to absolute constitutional protection under all circumstances."

In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), we held that a State could lawfully punish an individual for the use of insulting "`fighting' words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id. at 315 U. S. 571-572. But the sort of expression involved in this case does not seem to us to be governed by any exception to the general First Amendment principles stated above.

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing, in addition, that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. This is not merely a "blind application" of the New York Times. It reflects our considered judgment that such a standard is necessary to give adequate "breathing space" to the freedoms protected by the First Amendment. Here it is clear that respondent Falwell is a "public figure" for purposes of First Amendment law. The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not "reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated." The Court of Appeals interpreted the jury's finding to be that the ad parody "was not reasonably believable," and, in accordance with our custom, we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by "outrageous" conduct. But, for reasons heretofore stated, this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here. The judgment of the Court of Appeals is accordingly Reversed.

B. Free Speech - continued

5. Defamation - continued

The defamation cases discussed in this chapter show that offensive or emotionally harmful speech about government officials and public figures is often protected, particularly when it involves satire or parody. In contrast, the First Amendment offers far less protection to speech that intentionally deceives others for personal gain. The next section turns to fraud, an area where false speech can be punished in a broader range of cases.

6. Fraud & Advertising

Fraud occurs when someone deliberately lies or makes a reckless misrepresentation of an important fact to persuade another person to act in a way that causes harm. In legal terms, it involves intentional deception and is not protected under the First Amendment because it is considered conduct, not expression. The law protects free debate in charitable fundraising and business advertising, but not deceit (Restatement [Second] of Torts § 525 ).

In Village of Schaumburg v. Citizens for a Better Environment (1980), the Supreme Court struck down a local ordinance that required charitable organizations to obtain a permit before soliciting donations in public and denied permits to groups that could not show that at least 75 percent of their receipts were used for charitable purposes. Citizens for a Better Environment, a nonprofit environmental group, was barred from soliciting under this rule. The village argued that the ordinance prevented fraud and protected donors from wasteful fundraising, but the Court held that charitable solicitation is protected speech because it combines fundraising with the communication of social and political ideas. While the government may regulate fraud or misrepresentation, it may not condition the right to solicit charitable contributions on rigid percentage-based requirements that restrict legitimate advocacy.

This standard was further refined in Riley v. National Federation of the Blind (1988), where the Court analyzed a North Carolina law requiring professional fundraisers to disclose the percentage of contributions actually going to the charitable cause at the time the donation request is made. The Court struck down the law under strict scrutiny, reasoning that this type of compelled disclosure altered the fundraiser’s message and burdened protected speech by discouraging charitable giving. While recognizing that the government can regulate and punish actual fraud when it comes to charitable solicitation, the Court held that it may not compel speech or impose rigid disclosure requirements that interfere with how organizations communicate their message. Instead, the court ruled that truthfulness in fundraising must be enforced through narrowly tailored anti-fraud measures.

Just as courts allow some leeway in charitable solicitation, they also permit some flexibility in commercial advertising. Courts have allowed puffery, which consists of exaggerated claims that no reasonable consumer would take literally, such as “the best cup of coffee in town.” However, businesses may not make false or misleading factual statements. For example, claiming a product is “clinically proven” to work when there is no reliable evidence to substantiate the claim is unlawful. Federal law provides two key tools to address such deception. Under Section 5 of the Federal Trade Commission (FTC) Act, the FTC may stop unfair or deceptive business practices and require substantiation for advertising claims. Additionally, Section 43(a) of the Lanham Act allows competitors to sue for false or misleading advertisements that are likely to deceive consumers and affect purchasing decisions. Together, these laws ensure that commercial speech remains truthful and that fraud, whether in sales or advertising, remains outside the protection of the First Amendment.

The Court applied this reasoning in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), a case that reshaped how the First Amendment applies to business communication. The case began when a Virginia law prohibited pharmacists from advertising the prices of prescription drugs, arguing that such ads would make the profession seem less “dignified.” The Supreme Court disagreed and struck down the law, ruling that consumers have a right to receive truthful information about prices and that commercial speech can serve an important public interest. Although the Court acknowledged that advertising is not as highly protected as political or artistic speech, it emphasized that truthful commercial information helps people make informed choices and supports transparency in the marketplace.

In Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), the Supreme Court created the well-known Central Hudson Test for evaluating restrictions on commercial speech. Under this standard, the Court held that the government may regulate commercial speech only if (1) it concerns lawful activity and is not misleading, (2) the government has a substantial interest, (3) the regulation directly advances that interest, and (4) the restriction is no broader than necessary. False or misleading advertising, however, receives no First Amendment protection at all, because it distorts rather than contributes to the marketplace of ideas.

Taken together, these cases show that the Supreme Court distinguishes between persuasion and deception. Although some professions, such as attorneys, are subject to ethical rules that place limits on advertising, this type of regulation is the exception rather than the norm (ABA Model Rules of Professional Conduct 7.1–7.5). In general, charitable appeals, fundraising efforts, and advertisements receive constitutional protection when they honestly convey ideas and information. Once a message crosses the line into deliberate falsehoods or material misrepresentations, however, it loses that protection.

7. Obscenity

Obscenity, as defined by Merriam-Webster, refers to material that is “offensive to accepted standards of decency or modesty.” In constitutional law, obscenity occupies one of the few categories of expression entirely excluded from First Amendment protection. The Supreme Court clarified this definition in Miller v. California (1973), when it upheld the conviction of a man who mailed unsolicited adult brochures. In doing so, the Court established a three-part test for determining whether material is obscene: (1) whether the average person, applying contemporary local community standards, would find that the work appeals to a prurient interest (meaning a morbid or shameful interest in sex); (2) whether the work depicts sexual conduct in a patently offensive way as defined by state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. This test is also known as the SLAPS test after the criteria in part three of the test, and it remains the controlling framework for obscenity cases.

Nearly thirty years later, the Court revisited the limits of this doctrine in Ashcroft v. Free Speech Coalition (2002), when it struck down portions of the Child Pornography Prevention Act of 1996, a federal law that banned “virtual” child pornography. The Court concluded that the law was written so broadly that it prohibited a wide range of images that did not involve the exploitation of real children. Accordingly, the Court held that depictions such as computer-generated images or youthful-looking adult actors cannot be criminalized merely for resembling illegal material because no real children were involved in their creation.

Recently, modern technology has created new challenges that blur the line between fantasy and exploitation. In response, Congress enacted the TAKE IT DOWN Act in May 2025, which makes it a federal crime to post or threaten to post nonconsensual intimate imagery online, including AI-generated or “deepfake” pornography (TAKE IT DOWN Act, Pub. L. No. 118-214 [2025]). The law also requires social media companies to remove such content within a specified timeframe after a report and to implement prevention systems within a year. Several states, including Tennessee, Iowa, and New Jersey, have passed similar laws criminalizing synthetic child sexual abuse material (American Academy of Pediatrics, Laws and Policies Around AI-Generated Deepfakes & Pornography, 2025). These measures reflect an evolving consensus that, while free expression remains a constitutional cornerstone, digital fabrications that exploit others, especially minors, fall outside the protections of the First Amendment.

Image 6.2

(University of San Diego, 2019)

8. Symbolic Speech

Symbolic speech refers to actions that convey ideas, such as wearing an armband, burning a flag, or staging a silent protest. In United States v. O’Brien (1968), the Supreme Court upheld the conviction of a man who burned his draft card on the steps of a Boston courthouse to protest the Vietnam War, reasoning that the law prohibiting destruction of draft cards served important administrative purposes and did not target expression itself. From this case, the Court developed the O’Brien Test, which allows the government to regulate symbolic conduct if (1) the regulation is within the government’s constitutional power; (2) it furthers an important or substantial government interest; (3) that interest is unrelated to the suppression of free expression; and (4) the incidental restriction on speech is no greater than essential to further that interest.

The following year, in Tinker v. Des Moines Independent Community School District (1969), the Court took a more protective stance when students were suspended for wearing black armbands to protest the Vietnam War, ruling in their favor because their silent, peaceful expression did not cause a material and substantial disruption of school operations. Justice Abe Fortas famously wrote that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Two years later, Cohen v. California (1971) reaffirmed that offensive expression remains protected speech, holding that a man could not be punished for wearing a jacket reading “Fuck the Draft” in a courthouse corridor. The Court explained that although the message was vulgar, it was not a direct personal insult or an incitement to violence, emphasizing that the First Amendment protects the emotive and political force of speech even when the language offends some members of the public.

In Texas v. Johnson (1989), the Supreme Court struck down a Texas law criminalizing flag burning, holding that the government may not prohibit expressive conduct simply because it offends or angers others. The Court emphasized that the act of burning the American flag in protest was a form of symbolic speech intended to convey a political message, and that suppressing such expression amounted to viewpoint discrimination. Although Congress and several state legislatures have repeatedly attempted to pass a constitutional amendment or federal statute banning flag desecration, these efforts have failed, leaving Johnson as the controlling precedent. (Congressional Research Service, Flag Desecration: Constitutional Issues and Congressional Proposals).

C. Freedom of the Press

The word "press” refers to the institutions and individuals who gather, produce, and distribute news or information to the public. This has traditionally meant newspapers, magazines, the radio, and television, but now it also includes digital and online journalism. (Encyclopaedia Britannica, 2024). The First Amendment clearly states that, "Congress shall make no law ...abridging the freedom of speech, or of the press." Historically, this meant that the government cannot engage in prior restraint, which refers to official actions that prevent speech or publication before it occurs, such as blocking the press from releasing information. (Cornell Law School, Legal Information Institute, Prior Restraint)

Freedom of the press has been one of the most fiercely protected elements of the First Amendment. The Supreme Court first defined its boundaries in Near v. Minnesota (1931), when it struck down a state law that allowed local officials to shut down newspapers deemed “malicious, scandalous, or defamatory.” The case involved The Saturday Press, a small Minneapolis paper known for harshly criticizing public officials. The Court ruled that this type of conduct, known as prior restraint, was unconstitutional, establishing the principle that the government generally may not prevent the press from publishing information it seeks to disseminate, absent extraordinary circumstances that would justify such restraint.

Four decades later, the press faced a new challenge over national security in New York Times Co. v. United States (1971), known as the infamous “Pentagon Papers” case. The Nixon Administration sought to prevent The New York Times from publishing excerpts of a classified government report detailing U.S. involvement in the Vietnam War, arguing that release of the information would endanger national security. The Supreme Court rejected that claim, ruling that prior restraint on publication is unconstitutional unless the government can show the material would cause direct, immediate, and irreparable harm to the nation. Because the articles described past government actions, rather than current military operations, the Court found no such threat. The decision reaffirmed that even in cases involving national security, the government bears a heavy burden when attempting to censor the press.

In Hazelwood School District v. Kuhlmeier (1988), the Supreme Court drew a distinction between professional journalism and student publications. The case arose after a high school principal removed two articles from a student newspaper prior. One article discussed teen pregnancy and the other addressed the impact of divorce on students. The principal insisted that the articles were inappropriate for younger readers. The Court upheld the principal’s decision, ruling that school officials may exercise editorial control over school-sponsored publications if their actions are “reasonably related to legitimate pedagogical concerns.” The decision clarified that while students do not “shed their constitutional rights at the schoolhouse gate,” those rights are more limited in educational settings and do not extend as broadly as the press freedoms enjoyed by professional journalists.

Most recently, in Moody v. NetChoice, LLC and NetChoice v. Paxton (2024), the Supreme Court addressed how the First Amendment applies in the digital age. The cases involved Florida and Texas laws that sought to limit how large social media platforms moderate user content, based on claims that the platforms were engaging in political bias. The Court vacated the lower court rulings and remanded the cases back to the lower courts, concluding that they had failed to properly analyze the First Amendment issues raised by the contested laws. Although the decision did not resolve all constitutional questions, the Court emphasized that platforms’ decisions to curate, promote, or remove user content may involve protected editorial judgment, signaling that traditional First Amendment principles extend into the modern digital landscape.

On September 19, 2025, the U.S. Department of Defense announced restrictions requiring journalists covering the Pentagon to sign a pledge agreeing not to gather or use any information that had not been formally approved for release, with violators risking the loss of their credentials. The policy also limited reporters’ movement inside the Pentagon, sharply reducing unescorted access to areas previously open to the press. The National Press Club and First Amendment advocates condemned the move as an unprecedented threat to independent journalism, warning that it would severely restrict the public’s access to information about military operations. Critics argued that forcing journalists to agree not to use “unauthorized” information amounts to a form of prior restraint. By conditioning press access on compliance with pre-publication approval, the Pentagon’s new policy risks violating this principle. The policy has since been challenged in federal court, with The New York Times filing suit in December 2025, arguing that the restrictions amount to an unconstitutional prior restraint on the press (Bensinger, 2025, The New York Times).

Questions about how much the government can regulate the media date back to 1934, when Congress passed the Communications Act of 1934, which included the Equal Time Rule. This rule requires broadcast stations using the public airwaves to provide legally qualified political candidates with comparable opportunities, meaning that if one candidate uses a station outside of regular news programming, the station must offer other candidates a similar amount of time in a comparable time slot. In 1949, the Federal Communications Commission (FCC) introduced the Fairness Doctrine, which required broadcasters to present contrasting viewpoints on controversial public issues, along with related rules granting individuals a right to respond to personal attacks aired on public frequencies. In 1970, the FCC adopted the Zapple Corollary as an extension of the Fairness Doctrine, requiring broadcasters who provided airtime to a candidate’s supporters or spokespeople to offer comparable time to supporters of opposing candidates, whether the message praised one candidate or criticized another. (Congressional Research Service, 2023; Federal Communications Commission, 2024).

Beginning in the 1980s, the FCC moved to dismantle many of these policies, reasoning that technological advances and the growth of additional media outlets made government-enforced balance unnecessary. The Fairness Doctrine was repealed in 1987, and the personal attack and political editorial rules were eliminated in 2000. In 2014, the FCC formally concluded that the Zapple Corollary no longer had legal effect. Because cable television, which expanded rapidly in the 1990s, does not rely on the public airwaves, it has never been subject to the Fairness Doctrine and remains outside its scope today. The Equal Time Rule continues to apply to broadcast stations using the public airwaves but generally does not apply to national cable networks, except in limited circumstances involving certain community access channels. In addition, the Equal Time Rule does not apply to exempt news programming, including regularly scheduled newscasts, news interview programs, documentaries in which a candidate’s appearance is incidental, and live coverage of bona fide news events. This broader trend of deregulation, combined with the rise of cable news and social media, has enabled media outlets to present news from more distinct political perspectives and has contributed to a more opinion-driven and ideologically polarized media environment. Algorithm-driven content on social media platforms further reinforces these divides, leading many Americans to encounter current events through sharply different lenses and, at times, to inhabit separate information realities (Congressional Research Service, 2023; Federal Communications Commission, 2024).

D. Freedom to Assemble and Petition the Government

The right of Americans to assemble, petition the government, and engage in protest is set out in the First Amendment, which states, “Congress shall make no law … abridging the … right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This right is historically rooted in the English tradition of petitioning the King for relief from injustices and was seen by the Founding Founders as an essential safeguard for democratic participation and accountability. (Mark 1988).

In Cox v. New Hampshire (1941), the U.S. Supreme Court upheld the convictions of Jehovah’s Witnesses who had marched without obtaining a parade permit. The Court ruled that the permit requirement was a reasonable, content-neutral regulation of the time, place, and manner of public assemblies, designed to ensure public safety and order, not to suppress speech or religion. Cox became a key precedent affirming that the government can impose reasonable time, place, and manner restrictions as long as they are applied fairly and do not target specific viewpoints.

Later cases provided further analysis of time, place, and manner restrictions. In Ward v. Rock Against Racism (1989), the Court upheld a New York City rule requiring performers in Central Park to use city-provided sound systems and technicians. The Court reasoned that this was a content-neutral regulation intended to control excessive noise and protect the community’s quality of life without restricting the performers’ message.

More than two decades later, in Snyder v. Phelps (2011), the Court faced a painful clash between free speech and personal dignity. Members of the Westboro Baptist Church picketed the funeral of Marine Lance Corporal Matthew Snyder, carrying signs that read “Thank God for Dead Soldiers” and “God Hates the USA.” The soldier’s father sued for intentional infliction of emotional distress, but the Court ruled 8–1 in favor of the protesters. Chief Justice Roberts explained that, although the speech was deeply offensive, it addressed matters of public concern and occurred on public land in accordance with local regulations. The record showed that the protesters demonstrated peacefully about 1,000 feet away from the church, notified local authorities in advance, followed all time, place, and manner restrictions, and stayed out of sight and earshot of the mourners. The decision reaffirmed that even hateful or hurtful speech remains protected when it takes place peacefully in a public forum.

A few years later, in McCullen v. Coakley (2014), the Court struck down a Massachusetts law that created a 35-foot “buffer zone” around reproductive health clinics to keep abortion protesters away from entrances. While acknowledging the state’s interest in ensuring safety and patient access, the Court found the law too broad because it burdened more speech than necessary. The Justices noted that the law prevented even quiet, consensual conversations and leafletting on public sidewalks. Following the ruling, Massachusetts revised its statute to rely on narrower, content-neutral measures, such as prohibiting obstruction and harassment, rather than broadly excluding all speakers from a specific area.

E. Freedom of Association

Freedom of Association is inferred from the First Amendment, rather than explicitly stated, and protects the ability to join, form, or leave groups and organizations without government restriction. This principle was first recognized in NAACP v. Alabama ex rel. Patterson (1958), where the Court struck down the state of Alabama’s attempt to force the NAACP to disclose its membership lists. The Court reasoned that compelling disclosure the names of members would discourage participation in the NAACP and expose its members to harassment.

Decades later, in Roberts v. United States Jaycees (1984), the Supreme Court upheld Minnesota’s anti-discrimination law, ruling that requiring the Jaycees to admit women did not violate the First Amendment. The Court explained that the organization’s activities were primarily civic and commercial rather than focused on promoting a particular viewpoint, so applying the law did not interfere with protected speech or association.

Years later, questions about association arose in the context of public events and expression. In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), the case centered on Boston’s St. Patrick’s Day parade. The private organizers of the parade refused to allow a gay rights group to march under its own banner, arguing that being forced to include the group would compel them to express a message they did not endorse. The Supreme Court agreed, holding that parade organizers have a First Amendment right to control the content of their expressive event, even when it takes place in public. Although the Hurley ruling remains in effect, the South Boston parade organizers later changed their policy, and since 2015 LGBTQ+ groups have been allowed to march openly, a reflection of shifting public attitudes, rather than a change in the law.

Years later, questions about association arose in the context of public events and expression. In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), the case centered on Boston’s St. Patrick’s Day parade. The private organizers of the parade refused to allow a gay rights group to march under its own banner on the ground that including the group would alter the message they wished to convey. The Supreme Court agreed, holding that parade organizers have a First Amendment right to control the content of their expressive event, even when it takes place in a public space, and that the state may not compel inclusion of a message the organizers do not wish to present. Although the Hurley ruling remains in effect, the South Boston parade organizers later changed their policy, and since 2015 LGBTQ+ groups have been allowed to march openly, a reflection of shifting public attitudes, rather than a change in the law (WBUR, 2015).

The tension between free association and anti-discrimination laws surfaced next in a case involving moral and religious expression of a private group. In Boy Scouts of America v. Dale (2000), the Boy Scouts dismissed James Dale, an assistant scoutmaster, after learning he was openly gay and active in a gay rights organization. Dale sued under New Jersey’s public accommodations law, arguing that his dismissal was discriminatory. The Boy Scouts argued that their values, including those grounded in traditional moral and religious beliefs, opposed homosexual conduct and that being forced to keep Dale as a scoutmaster would violate their First Amendment right to expressive association. The Supreme Court agreed, holding that compelling the Scouts to include a leader whose presence contradicted their stated beliefs would unconstitutionally interfere with their ability to express those values.

Conclusion

Over time, the Supreme Court has repeatedly clarified the protections of the First Amendment, often reaffirming that its guarantees extend to speech and expression that many Americans find offensive or disagreeable. New challenges to these freedoms continue to arise, sometimes in unexpected forms. For that reason, it remains important for the public to stay informed about court decisions and government actions that affect these fundamental liberties.

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Chapter Six

Chapter Outline

Fighting Words & Disorderly Conduct