The freedom of speech guarantees in the US Constitution apply very broadly to speech with only a few narrow exceptions. For example, courts have ruled that Miller-type Obscenity, “Fighting Words” and Child Pornography do not constitute protected speech and that the government may regulate them.
A while ago, I posted this question as to whether or not fighting words were still illegal. I’m going to expand the question - are there any types of speech that are legal in some jurisdiction of the US, not because the Constitution’s guarantees render any laws (if they exist) forbidding the speech void, but because even though it is not protected under the Constitution, applicable substantive non-Constitutional law allows it?
For example, say Montana passes a state law making it a misdemeanor to distribute information regarding quadratic hypotenuses. Joe Blatt, a resident of Billings, is arrested for publishing a pamphlet on quadratic hypotenuses and distributing it at his church. Joe takes the matter all the way up to the SCOTUS and the SCOTUS rules that speech that is about quadratic hypotenuses is not protected under the Constitution because it is immature, blasphemous, against community standards of good conduct, against the prevailing scientific consensus, and just downright boring. The validity of the Montana law and Blatt’s conviction is upheld. After finishing his jail term, he notices that Illinois never got around to passing a law against discussing quadratic hypotenuses (or decided that the benefit of passing such a law wasn’t worth the cost), and he moves there to continue publishing, knowing that while discussing quadratic hypotenuses is not a right guaranteed by the Constitution, it is something that he can legally do in Illinois for the time being.
Has the SCOTUS ever upheld a public swearing ordinance in such a sense to actually ban simple use of profanity that does not constitute “fighting words” or incitement to imminent violence?
I’mI think profanity would fall under local morality standards like pornography. So while it may be illegal in Bibleville, it is still legal in Fuckton.
Oh you think they don’t swear in Bibleville? You probably think they don’t screw either. Know that the Bible belt has a higher teenage pregnancy rate than most of the rest of the US. It might come from lack of sex education, although perhaps there is simply less to do there.
Not strictly covered by law, but by Federal regulations:
Broadcasters are legally responsible for everything they broadcast EXCEPT for political advertising by candidates. In fact, they are specifically barred from editing a candidate’s message. So in theory a candidate could spew obscenities, commit libel, yell fire in a crowded theater or whatever, and the radio or TV station would have no choice but to air it.
In fact, this has happened to a small degree. In the 1970s, a Democratice senator named Fred Harris was running for President and made a series of commercials stating “no more bullshit.” Barry Commoner used similar language when he ran in 1980. Lyndon LaRouche ran ads that, among other things, called Walter Mondale a KGB agent. Broadcasters were not happy with these ads and added disclaimers to the ads, but they ran them.
AFAIK laws either prohibit, regulate or protect (lesser authorities can’t prohibit it) something.
So, what you’re really asking is are there any state-level (or lower) laws further regulating speech (from what the federal gov. restricts/allows), right?
Some other problems:
lesser authorities (i.e. states) cannot allow or protect something prohibited by a higher authority (i.e. federal gov.).
On the other hand, a state supreme court could theoretically rule that some speech was protected despite the federal supreme courts ruling (which merely removed ‘protected’ status from said speech, meaning states or the federal legislature could do whatever they want with it).
Well, effectively what I think I’m looking for are cases where there was a law prohibiting a certain type of speech, someone was prosecuted or sued and claimed Freedom of Speech as a defense, and a sufficiently high court ruled that the law was valid because the speech wasn’t constitutionally protected, but the underlying law was later repealed or was never in effect in other areas that fall under the jurisdiction of the ruling high court. For example, we know that child pornography is not protected by the Constitution. Imagine a circumstance where, say, Oregon repeals its laws forbidding the possession, creation, and distribution of child pornography. Then, it would seem that there would be a form of speech (child porn) that is legal in Oregon by the grace of, and at the mercy of, the Oregon state government. Oregon could make it illegal again with a simple statute and no Constitutional argument could stop it from doing so.
There might also be an issue if the matter only reached a US district appellate court and thus there might be one part of the country where discussing quadratic hypotenuses is considered protected free speech, local laws notwithstanding, and another part of the country where states can choose whether or not to allow discussion of quadratic hypotenuses within their territory.
Regarding #2, I’m not sure that’s possible. Aren’t SCOTUS rulings considered binding on every court in the country?
Am I missing something? I thought all speech in the US is protected unless the Supreme Court specifically excludes it from that protection.
If that is indeed true, then no lower court need further legalize speech because there is no such thing as “illegal speech” to begin with except for the aforementioned Supreme Court exceptions.
If there is a law prohibiting a certain type of speech that doesn’t come from the Supreme Court, it usually means nobody has bothered to challenge it all the way up to the Supreme Court yet.
Even commercial speech is protected, I believe, subject to those restrictions. And that protection was recently made more explicit through Citizens United.
I know the OP is looking for an example where local law trumps Federal law, but what usually happens is something more like this:
Some communities have tried to ban For Sale signs for fear that too many signs in a neighborhood will cause other homeowners to panic-sell their homes and the entire area will be destabilized.
Lower courts have sometimes upheld those ordinances because of zoning codes that basically say “keep stuff out of your front yard.”
However, higher courts invariably overturn the lower courts because the right of someone to tell the world their house is for sale outstrips the right of a city to tell you to keep your yard uncluttered.
There are some specific things like doctor-patient privilege where some states may have greater protection than federal codes. But those aren’t free speech issues – they fall under right-to-privacy or (in criminal or civil cases) right to a fair trial umbrellas.
When I say speech that is not protected by the Constitution, I’m not talking about speech that is banned by the Constitution and Federal Law but permitted by state or local law, but speech that has been deemed not to be protected by the Constitution and, therefore, is up to applicable legislatures to ban if they deem it necessary and proper. For example, as I mentioned above, Oregon could repeal its laws against child porn. It’s already been determined that child porn is not protected speech under the Constitution, but the Constitution does not actually ban it, the applicable statute(s) actually ban it. The Constitution is neutral here - it doesn’t step in and make the statute banning child porn void because child porn is not First Amendment protected speech. If Oregon passed a law forbidding publishing material that criticizes the Governor, that law would be void because speech critical of government officials is protected under the US Constitution and the Constitution steps in and trumps the Oregon state law.
One thing that may make this question not have a lot of answers is that speech that has been ruled to be not protected is speech for which there has actually been a court case where a regulatory law was challenged. It could well be the case that, in theory, cookie recipes are not protected by the First Amendment, but no court has ruled so because no legislature has actually passed a law banning the creation, distribution, or possession of cookie recipes.
Well, you’re kind of asking for examples of things that haven’t been regulated (but could be). And there’s really an infinite amount of things that fall into that category.
For instance, I believe every state regulates giving legal or medical advice for money; you generally need a license to do so. This has never been overturned on 1st amendment grounds. As far as I know, no state has regulated giving fashion advice, even for money, but there’s no 1st amendment reason they couldn’t. And we could come up with an infinite amount of similar kinds of advice that theoretically could be regulated (sure, the state would need to make an argument that there’s a real benefit to regulating this kind of speech, but that’s generally not too high a bar).
If you’re looking beyond theory to speech that is in fact legal in one jurisdiction but not in another, there are almost certainly some kinds of professional advice-giving that are regulated in some states but not others, though I don’t know what they are (personal fitness trainers, maybe?).
Since none of us seems to be able to provide a satisfactory answer, here’s a link to theFirst Amendment Center which covers all sorts of different scenarios.
Child pornography is prohibited under federal law (18 U.S.C. §2256), so even if Oregon overruled its state prohibition, the feds could still step in.
So are you looking for speech that has been exempted by the Supreme Court from FA protection but hasn’t yet been specifically banned in statute (federal or state)?
That seems unlikely, because why and how would the Supreme Court sit around and randomly unprotect speech without a court case before it?
In theory, everything is protected by the First Amendment until and unless deemed otherwise by the Supreme Court. States and local government can outlaw anything they want (and often do), but few of those restrictions would survive a Supreme Court challenge. And that is the only point at which speech loses its constitutional protection.
To speculate otherwise is what Quercus said – things that aren’t regulated but could be, and you’d have to be able to see the future and look inside the Supremes’ brains.
I can offer a similar example from a different jurisdiction, which may perhaps help explain what the OP is looking for. The South African constitution protects the freedom of expression, with three specific exceptions: “propaganda for war”, “incitement of imminent violence” and “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm” (i.e. hate speech). The government has passed laws regulating hate speech and incitement, but has (AFAIK) not regulated propaganda for war. So such propaganda is not constitutionally protected, but neither is it (at the moment) legally prohibited.
The difference is that in the USA the Constitution does not specifically ban any speech; it protects all speech. It was later Supreme Court decisions that specifically exempted certain types of speech, always (as far as I know) because there was a court case that forced them to consider the issue.
For there to exist unprotected but unbanned speech, the Supreme Court would’ve had to craft an exemption to the First Amendment on their own accord, without an accompanying court case, something that seems bizarre to me (but I’m not a legal scholar by any stretch, so feel free to correct me).
Yep, this is on the right track. I do agree that the SCOTUS (or another court that creates sufficiently high precedent) would be unlikely to rule on theoretical types of speech for which no attempt has been made to ban them (e.g. with a case that references a specific statute on the books or perhaps English common law that is reacting against a person’s use of speech that the prosecutor deems sufficiently bad to file charges). So the SCOTUS isn’t going to be going around and saying that cookie recipes are unprotected speech that is at the mercy of the legislature to permit or prohibit because no jurisdiction has tried to ban cookie recipes.
As mentioned above, one option for the SCOTUS to rule a form of speech as non-protected under the FA but where it is still legal would be for the law/statute banning it to have applied to only part of the country (e.g. it was only a Montana law, there was no equivalent Federal law and no other state banned that type of speech, but the SCOTUS ruled that ANY state can ban it if it wants), or if the law was repealed after the SCOTUS upheld it (e.g. repealing bans on fighting words, direct threats, child pornography, or obscenity).