Say the government is acting as sovereign. The power it has to restrict speech depends on which of the three categories the speech falls into:
- CONSTITUTIONALLY VALUELESS SPEECH: Some speech has (close to) no constitutional protection, because the Supreme Court has concluded that it lacks constitutional value. This generally includes:Common MYTH: "Only political speech is fully protected." No; to be fully protected, speech doesn't have to be political or in any way exalted -- it just has to be outside the valueless or intermediate boxes.
- SPEECH GIVEN INTERMEDIATE PROTECTION: Some speech is protected to some extent, but not entirely:
- False statements of fact said by people who know the statements are false (or who show reckless disregard of the possibility of falsehood).
- Obscenity (more about that later).
- Child pornography.
- Statements that are intended to, and likely to, incite more or less immediate lawless conduct.
- Threats.
- Criminal solicitation or conspiracy.
- FULLY PROTECTED SPEECH: All other speech has maximum constitutional protection. This includes:
- Commercial advertising is unprotected if it's false (even negligently false) or misleading; it may also be unprotected in some other cases.
- Speech that is not obscene but quite sexually explicit also has some protection, but in some respects not as much protection as "fully protected" speech.
- Speech about politics, society, religion, philosophy, and science.
- Art, literature, music, poetry.
- Jokes, gossip, entertainment, and casual chit-chat.
- Pretty much anything else that doesn't fall into the valueless or intermediate categories.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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