First Amendment Limits In Criminal Law
📜 First Amendment in Criminal Law: Overview
🔐 What does the First Amendment protect?
The First Amendment states:
“Congress shall make no law… abridging the freedom of speech, or of the press… or the right of the people peaceably to assemble…”
Protected speech includes:
Political speech
Symbolic speech
Religious expression
Peaceful protests
But not all speech is protected, especially if it crosses into criminal conduct.
🧨 Unprotected Categories of Speech:
Incitement to violence
True threats
Obscenity
Child pornography
Defamation
Speech integral to criminal conduct (e.g. perjury, fraud)
Fighting words
⚖️ Key Supreme Court Cases Defining the Limits
Here are seven landmark cases showing how courts apply and limit the First Amendment in the context of criminal law:
1. Schenck v. United States, 249 U.S. 47 (1919)
Issue: Can speech that encourages draft resistance be criminalized during wartime?
Facts: Charles Schenck distributed leaflets urging men to resist the military draft during WWI.
Holding: The Supreme Court upheld his conviction under the Espionage Act.
Key Quote: Justice Holmes introduced the “clear and present danger” test — “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre...”
Significance: Early recognition that speech can be criminalized when it poses a clear and present danger to national security or public order.
2. Brandenburg v. Ohio, 395 U.S. 444 (1969)
Issue: When does advocacy of violence lose First Amendment protection?
Facts: A Ku Klux Klan leader gave a speech promoting possible violence.
Holding: The Court ruled the state could not punish him unless his speech incited imminent lawless action.
Test Introduced: Speech is unprotected if:
It incites or produces imminent lawless action, and
It is likely to produce such action.
Significance: Strongly protected political speech, even when offensive, unless it directly incites immediate violence.
3. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
Issue: Are "fighting words" protected by the First Amendment?
Facts: Chaplinsky insulted a city marshal with religious and political slurs during a street confrontation.
Holding: The Court upheld his conviction.
Key Concept: Introduced the "fighting words doctrine" — speech that by its very utterance inflicts injury or incites immediate breach of peace is not protected.
Significance: Created an exception for extremely provocative personal insults.
4. Virginia v. Black, 538 U.S. 343 (2003)
Issue: Is cross burning protected symbolic speech?
Facts: Defendants were convicted under a law banning cross burning with intent to intimidate.
Holding: The Court ruled that cross burning can be criminalized if done with intent to intimidate, but a blanket ban is unconstitutional.
Significance: Clarified that true threats — speech intended to instill fear — are not protected.
5. United States v. O’Brien, 391 U.S. 367 (1968)
Issue: Can the government punish someone for burning a draft card?
Facts: O'Brien burned his draft card as a protest against the Vietnam War and was prosecuted under federal law.
Holding: The Court upheld the conviction, saying the law targeted conduct, not speech.
Rule Introduced: Government can regulate symbolic speech if it furthers an important government interest unrelated to suppressing expression.
Significance: Balanced symbolic speech with legitimate regulation of conduct.
6. Elonis v. United States, 575 U.S. 723 (2015)
Issue: Can someone be convicted for online threats without proving intent?
Facts: Elonis posted violent rap lyrics on Facebook about his wife and law enforcement.
Holding: The Court overturned the conviction because prosecutors did not prove that Elonis intended the posts as threats.
Significance: Clarified that subjective intent matters — not just how the audience perceives a threat.
7. Wisconsin v. Mitchell, 508 U.S. 476 (1993)
Issue: Is it unconstitutional to increase a sentence based on the defendant’s bias or motivation?
Facts: A black defendant attacked a white victim and received a sentence enhancement for hate crime motivation.
Holding: The Court upheld the enhanced sentence, saying bias-motivated conduct can be punished more harshly.
Significance: Conduct influenced by speech or belief can lead to stiffer penalties, without violating free speech protections.
🧠 Summary Table
| Case | Key Issue | Ruling Summary & Significance |
|---|---|---|
| Schenck (1919) | Anti-draft speech | Clear and present danger test; some limits on wartime speech |
| Brandenburg (1969) | Incitement to violence | Only speech inciting imminent lawless action is unprotected |
| Chaplinsky (1942) | Fighting words | Insulting words likely to provoke violence aren’t protected |
| Virginia v. Black (2003) | Threatening symbols | True threats (like cross burning with intent) are unprotected |
| O'Brien (1968) | Symbolic protest (draft card) | Symbolic speech can be restricted if law serves other valid goals |
| Elonis (2015) | Online threats | Intent must be proven in criminal threats |
| Mitchell (1993) | Hate crime sentence enhancement | Bias-based actions can be punished more without violating free speech |
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