According to the U.S. Supreme Court’s standard in Brandenburg v. Ohio (1969), even speech that advocates illegal conduct is protected speech under the First Amendment unless the speech incites imminent lawless action and is likely to cause such unlawful action. Brandenburg involved a Ku Klux Klan leader near Cincinnati, Ohio, area who gave a speech filled with racist comments about African-Americans and Jews. He also said that if the government kept up its course of action, there would have to be some “revengeance” taken. However, the Court unanimously determined that this fell far short of incitement to imminent lawless action.
The Court explained: “These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such act.”
When does speech cross the line and become a true threat?
True threats also are not protected by the First Amendment. Rhetorical hyperbole—even if the speaker uses harsh and colorful language—generally will not constitute a true threat because there is no serious intention to cause harm to another. The U.S. Supreme Court applied this principle in the case of Watts v. United States (1969), which involved a young African-American war protester. Speaking in a crowd, the young man said that if the government made him go with his “black brothers” to Vietnam that the first person he would put in the “scope of his rifle was L.B.J.” referring to U.S. President Lyndon Baines Johnson. The Court determined that this was mere political hyperbole, rather than an actual threat.
In Virginia v. Black (2003), the Court offered a more concrete definition of a true threat in the context of a case involving cross burnings by Ku Klux Klan members. The Court determined that true threats “encompass those states where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”
What was the U.S. Supreme Court’s definition of a true threat in Virginia v. Black (2003).
“True threats” encompass those statements where 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. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people “from the possibility that the threatened violence will occur. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”
Does the First Amendment protect advertising?
Yes, in the mid 1970s the U.S Supreme Court ruled that advertising was a form of speech entitled to First Amendment protection. In an earlier ruling in Valentine v. Chrestensen (1942) the U.S. Supreme Court had ruled that the First Amendment does not protect “purely commercial advertising.”
However, three decades later the Court realized that the “free flow of commercial information” was important in society and that people have a right to receive information and ideas in a commercial culture. The Court reached this conclusion in Virginia Pharmacy Board v. Virginia Consumer Council (1976; see LegalSpeak, p. 52), a case involving a challenge to a Virginia law that forbade pharmacists from advertising the prices of prescription drugs. The state pharmacy board argued that there should be no free-speech protection for purely commercial advertising. The board also contended that the state could prohibit pharmacists from advertising prices as a way to preserve professionalism.
The Supreme Court rejected these arguments and overruled Valentine v. Chrestenson in the process. The state pharmacy board wanted to prevent price advertising to protect the public. The Supreme Court said that there was another alternative to suppressing this information: “That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.”
Does the status of a speaker affect First Amendment freedoms?
Yes, context matters a great deal in First Amendment cases. Adult citizens have the full protection of the First Amendment when they are in society. However, adults do not have the same level of First Amendment rights when they work as public employees. Likewise, public school students—most of whom are minors—do not have the same level of First Amendment rights when they are in school as they do when they are out of school.
Is it okay to stretch the truth in an advertisement because you are exercising free speech under the First Amendment? Or should such ads be strictly regulated? (iStock)
What is the level of free speech protection for public employees?
Public employees have First Amendment rights but they are limited by the employment relationship. In one decision, Garcetti v. Ceballos (2006; see LegalSpeak, p. 54), the U.S. Supreme Court ruled that public employees do not have free-speech protection for speech made pursuant to their official job duties. However, if a citizen speaks more as a citizen than an employee, the courts will apply a two-part test from Pickering v. Board of Education (1968) and Connick v. Myers (1983). That test asks: (1) Did the employee’s speech touch on matters of public concern or importance; and (2) does the employee’s right to free speech trump the employer’s right to an efficient, disruptive-free workplace.
LegalSpeak: Virginia Pharmacy Board v. Virginia Consumer Citizens Council
The U.S. Supreme Court decision on Virginia Pharmacy Board v. Virginia Consumer Citizens Council (1976) read, in part, as follows:
Here, in contrast, the question whether there is a First Amendment exception for “commercial speech” is squarely before us. Our pharmacist does not wish to editorialize on any subject, cultural, philosophical, or political. He does not wish to report any particularly newsworthy fact, or to make generalized observations even about commercial matters. The “idea” he wishes to communicate is simply this: “I will sell you the X prescription drug at the Y price.” Our question, then, is whether this communication is wholly outside the protection of the First Amendment….
As to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate. Appellees’ case in this respect is a convincing one. Those whom the suppression of prescription drug price information hits the hardest are the poor, the sick, and particularly the aged. A disproportionate amount of their income tends to be spent on prescription drugs; yet they are the least able to learn, by shopping from pharmacist to pharmacist, where their scarce dollars are best spent. When drug prices vary as strikingly as they do, information as to who is charging what becomes more than a convenience. It could mean the alleviation of physical pain or the enjoyment of basic necessities. Generalizing, society also may have a strong interest in the free flow of commercial information….
There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. If they are truly open, nothing prevents the “professional” pharmacist from marketing his own assertedly superior product, and contrasting it with that of the low-cost, high-volume prescription drug retailer. But the choice among these alternative approaches