Free Speech 

Fundamentals of Criminal Law by Adam J. McKee

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Free Speech

The first amendment protects the rights of American’s to write, speak, and communicate thoughts and ideas without government interference. There are, however, five categories of speech that the First Amendment does not protect:

  1. Obscenity refers to material whose primary appeal is to nudity, sex, or excretion.
  2. Profanity refers to irreverence toward sacred things, such as the name of God.
  3. Libel and Slander refer to the defamation of another person.
  4. Fighting words refers to words that are likely to provoke the average person to retaliate.
  5. Clear and present danger refers to an expression that creates a danger to the public, such as shouting “fire” in a crowded theater.

Term of Art:  Speech

The term speech has been interpreted by the Court to cover nearly all forms of expression, including verbal and written words, pictures, photographs, videos, and songs. First Amendment speech also includes expressive conduct such as dressing a certain way,  It even extends to conduct that many people find reprehensible, such as burning flags and crosses.


Miller v. California

In Miller v. California (1973), the SCOTUS devised a three-part test to ascertain if speech is obscene and subject to government regulation.  Generally, speech is obscene if

  1. the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest in sex;
  2. it depicts sexual conduct specifically defined by the applicable state law in a patently offensive way; and
  3. it lacks serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15 (1973)

References and Further Reading

“First Amendment.” West’s Encyclopedia of American Law. Retrieved September 18, 2018 from


Modification History

File Created:  07/12/2018

Last Modified:  09/26/2018

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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