10 Rights the First Amendment Absolutely Does Not Grant

The Right to Say Anything
Several demonstrators dressed as pilgrims carry placards calling for the release of political prisoners in front of the White House, ca. 1919. © CORBIS

Freedom of speech is one of the pillars of American democracy. The Supreme Court has reaffirmed again and again the right of any person or group to proclaim and publish its opinions — no matter how unpopular. In a high-profile 2011 decision, the Supreme Court defended the rights of the controversial Westboro Baptist Church to protest during military funerals. The Ku Klux Klan is allowed to stage parades, and writers and artists are allowed to produce books and artwork that push the boundaries of taste.

Does that mean you can say absolutely anything to anyone at any time? Absolutely not. The Supreme Court and lower courts have identified nine types of speech that are not protected under the First Amendment [source: First Amendment Center]:

  • Obscenity
  • Fighting words
  • Defamation (including libel and slander)
  • Child pornography
  • Perjury
  • Blackmail
  • Incitement to imminent lawless action
  • True threats
  • Solicitations to commit crimes

These particular types of speech are unprotected because they either actively break the law, incite others to break the law, or create a potentially violent or unsafe situation. Obscenity arguably has proven the most difficult to define. In the 1973 Supreme Court case Miller v. California, the justices established a three-part test to determine whether a publication, movie, image or work of art is "obscene." In general, such a work is protected as free speech if, "taken as a whole," it has at least some "serious literary, artistic, political or scientific value" [source: Legal Information Institute].