This article on ‘Criminal Law and Freedom of Speech’ is written by Nilanjana Banerjee and explores the limits imposed by the USA on the criminalisation of speech. I. Introduction Freedom of expression is an immensely important right for every individual and free speech is an inseparable part of it. First amendment offers a descriptive view of the free… Read More »

This article on ‘Criminal Law and Freedom of Speech’ is written by Nilanjana Banerjee and explores the limits imposed by the USA on the criminalisation of speech.

I. Introduction

Freedom of expression is an immensely important right for every individual and free speech is an inseparable part of it. First amendment offers a descriptive view of the free speech law.

The first amendment says that, “Congress shall make no law respecting and 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.”[1]

There are five freedoms that the first amendment to the US constitution protects and they are speech, religion, press, assembly, a petition to the government. These freedoms are available to all and there is no age restriction for acquiring these rights. These are guaranteed to everyone since birth. But this article does not discuss all the five freedoms, it explores only freedom of speech.

There are two lists concerning freedom of speech. One list is the list of unprotected speech, which does not come under the ambit of the 1st Amendment and such speech is criminalised. While the second list is the protected list and the contents of this list are protected under the 1st amendment. No criminal action can be taken against a person exercising his or her right to protected speech. There is a decriminalisation movement going on, where the judiciary is narrowing down the scope of unprotected speech. The role of the judiciary in channelizing free speech is immense. This process is also called ‘blocking’ as the judiciary has blocked the government control over the freedom of speech.

II. Protection of unprotected speech

Blocking in this context means exempting speech from government regulation and to that extent such a person enjoying the freedom of speech cannot be criminalised. Over few decades it has been observed that the government exemptions from speech-related activity have increased and it is the creation of courts. From the court’s working system, three things have gotten very clear.

Firstly, “unprotected speech” is not absolutely unprotected. Secondly, the court is firm in not adding to the unprotected list. Thirdly, the courts have made efforts to narrow the categories of the Chaplinsky list i.e. the unprotected list. In short, the judiciary has planted such seeds which will result in doctrines broadening the ‘blocking’ protection of speech. The unprotected list is called Chaplinksy list in the context of the case of Chaplinsky v. New Hampshire[2].

In this Chaplinsky was distributing pamphlets that supported his beliefs as Jehovah’s witnesses. He called the town marshal ‘a God damned racketeer and fascist’. He was arrested and convicted under state law which protected such speech. He argued that he is protected under the freedom of speech. But the court unanimously upheld his conviction and said that there are certain exceptions to the protection under the 1st amendment. Such exceptions include obscenities, slanderous speech and fighting words as they cause direct harm as well as immediate breach of peace. Thus, the state can use its power to curb such forms of expression.

However, the categories or unprotected list are not absolutely unprotected and the landmark case signifying it is R.A.V. v. City of St. Paul[3]. In this, the cross fence of an African American family was burnt in St. Paul city of Minnesota. Such person was charged under ‘Bias- Motivated crime ordinance’ which had outlawed such speech which arouses anger, resentment in others on the basis of race, religion, colour.

The court interpreted the ordinance and confined its reach to fighting words only. Also, it was considered invalid in one form because the state was restricting the expression of views about the disfavoured group. The government could not discriminate on the basis of the content of speech. The bench in this case had a speech sheltering attitude. The court had identified that the local government had the tendency to attack unprotected speech, especially on disadvantaged members. In this case, the court engaged in decriminalisation through blocking and this ruling provides an opening to the judges to protect even unprotected speech.

A similar issue was again pointed out in Stanley v. Georgia[4] This case arose out of possession of obscene materials by the defendant at his home. ‘Obscenity’ was one of the categories of Chaplinsky list thus it was thought that there is no problem in prosecuting. The detailed discussion on this issue will resurface in the subsequent heading. For now, the pertinent point is, in Stanley, the court again signalled its interest in safeguarding such forms of expression which are unprotected.

III. Narrowing the unprotected list

Speech causes injury, but not all forms of such speech are a part of the Chaplinsky list. Hence, it is assumed that the court will add to that list by recognising new categories as they come up. The court was expected to show the least tolerance to such forms of expression but the court has shown the least tolerance to the state’s speech regulation. The list of such rulings is a long one. Some of the rulings in which the court declined to accept such expression as ‘unprotected’ –

  1. Flag burning ( Texas v. Johnson )[5]
  2. Sexual graphics but non-obscene materials which promote women subordination.
  3. Inflicting severe emotional injury, only on public concerning matters. (Synder v. Phelps)[6]
  4. Cross burning (Virginia v. Black )[7]
  5. Sale of violent video games (Brown v. Entm’t Merchs. Ass’n)[8]
  6. Public destruction of nation’s valued symbols (Schacht v. US)[9]
  7. Depicting animal cruelty (
    US v. Stevens
  8. Intentionally lying about receiving military rewards (US v. Alvarez)[11]

In all of these aforementioned cases, the court has taken a speech protection stance and rejected adding new items to Chaplinsky list. Narrowing the Chaplinsky list is not the only way by which the court is working on ‘blocking’. Court has narrowed down the definition of inciting words, fighting words which are forms of unprotected speech. There were several instances when the court removed items from the unprotected speech list.

In Cohen v. California[12], the court took a bold step to erase out those theories which had the potential to remove free speech from the 1st amendment. After Cohen wore a jacket mentioning the word ‘fuck’, he was prosecuted for disturbing the court environment. The court held that public display of the ‘fuck’ was protected by the 1st amendment. It was further added that discomforting speech sometimes needs to be celebrated rather than condemned. This knocked out the Chaplinsky judgement where the court had suggested that lewd and profane speech are unprotected even if they do not classify as obscene or fighting words.

Thereafter in Valentine v. Chrestensen[13], the court had declared that commercial speeches are not protected, thus they can be criminalised. But his was overruled in the case of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council.[14] The court said that the state should not be banning truthful advertisements about the prescripted drugs, and it will be given more protection than no protection at all.

IV. Are the words inciting crime protected?

This section will analyse whether the words that push the commission of the crime to be subjected to government control. It can be determined by a few cases. One such case is Brandenburg v. Ohio[15] where the court had held that only such words can be regulated which incite imminent lawless actions.

It had laid a test to determine so. As per this, three requirements had to be fulfilled for government to knock out the protection. Requirements are-

  1. Speech must qualify as incitement.
  2. It must create a likelihood of imminent lawlessness.
  3. The speaker should have the intent to incite.

In post-Brandenburg cases, a fourth limitation was put and i.e. the lawbreaking act must be a serious one.

All these tests led to decriminalisation. In Hess v. Indiana[16], the court had acquitted a demonstrator who was earlier convicted of saying ‘we’ll take the fucking street later.’ While acquitting the court said that it was mere advocacy of illegal action at any indefinite future time which cannot be convicted.

V. Can the hostile audience speech be criminalised?

From the very beginning, the concept was that the state can restrain and now there is a clear and present risk of riot or poses an immediate threat to peace – security. But the problem with this doctrine is very hard to detect. It punishes a speaker for the actions of unsympathetic listeners and therefore attempts are being made to protect such provocative speakers.

In the case of Cantwell v. Connecticut[17], the court was very clear that speech that creates a danger of riot can be punished. Thereafter in Feiner v. New York[18], the court upheld the Cantwell doctrine and convicted the speaker who was addressing the public. Subsequently, two more cases came up i.e. Edwards v. S. Carolina[19] & Cox v. Louisiana[20].

The facts of both these cases are quite similar. The marchers and crowd did not listen to police orders and kept walking ahead. In both cases, the court threw conviction with the reasoning that there was no threatened violence. From these two cases, it can be concluded that the following three requirements must be fulfilled-

  1. There should be a threat of retaliatory violence
  2. Speaker intended such a result
  3. Police officers are unable to manage the court

Finally, it was in the case of Cohen which rejected the hostile audience speech theory. It was the case of the defendant wearing a jacket mentioning the ‘FUCK’ word.

VI. Can ‘sexually-oriented expression’ be criminalised?

The court’s approach towards sexually oriented expression is a mixed approach. In Miller v. California[21], the court allowed the state to regulate the obscene materials. The Burger court acknowledged that several forms of erotic materials are protected under the 1st Amendment. In Pope v. Illinois, the court worked on the ‘Miller test’ to determine conviction. As per the test, the controversial work has to be analysed on ‘non-community standards’. Moreover, it has to be checked whether the work has any literary, artistic, political or scientific value.

But despite all these, there has been no consistent doctrine to decide the criminalisation issue. In Sable Communications of California v. FCC[22], the court had struck down a statute that denied access to non-obscene dial porn messages to guard against the messages reaching youngsters. Similarly, in US v. Playboy entertainment group[23], the court had invalidated that statute that required cable operators to remove sexually-oriented channels at night.

Other than these, child pornography is also a big issue. It was solved in the Ferber case. In New York v. Ferber[24], the court concluded that child pornography should not receive protection. Several cases came up after that. In the free speech coalition case, the court said that protection does not extend to virtual child pornography where there is no use of real children. This controversy is still on and the matter is unsettled.

VII. Conclusion

The right to free speech is very important, but it can’t be an absolute right. There have to be restrictions and it is decided by the two lists. They are protected speech list and unprotected speech list. The judiciary has played a very crucial role in keeping free speech alive. There are so many instances where the court has tried to remove the categories from the unprotected speech list.

This widens the scope of free speech, which is very vital. 1st Amendment bestows this right but it has been kept alive by the judiciary. Some of the burning issues like hostile audience speech, flag burning, sexual matters, child pornography have got special attention. The court has tried to keep a balance between free speech and government regulation. With this, the court successfully kept the scope of free speech wider.


[1] U.S. CONST. Amend I.

[2] 315 U.S. 568 (1942).

[3] 505 U.S. 377 (1992).

[4] 391 U.S. 557 (1969).

[5] 491 U.S. 397 (1989).

[6] 562 U.S. 443 (2011).

[7] 583 U.S. 343 (2003).

[8] 564 U.S. 786 (2011).

[9] 398 U.S. 58 (1970).

[10] 559 U.S. 460 (2010).

[11] 132 S.Ct. 2537 (2012).

[12] 403 U.S. 15 (1971).

[13] 316 U.S. 52 (1942).

[14] 425 U.S. 748 (1976).

[15] 395 U.S. 444 (1969).

[16] 414 U.S. 105 (1973).

[17] 310 U.S. 296 (1940).

[18] 340 U.S. 315 (1951).

[19] 372 U.S. 229 (1963).

[20] 379 U.S. 536 (1965).

[21] 413 U.S. 15 (1973).

[22] 492 U.S. 115 (1989).

[23] 529 U.S. 803 (2000).

[24] 458 U.S. 747 (1982).

  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
Updated On 22 Sep 2021 6:19 AM GMT
Nilanjana Banerjee

Nilanjana Banerjee

National University of Study and Research in Law Ranchi

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