Thursday, April 13, 2006

Protected vs. Unprotected Speech


Since much of Free Speech law is confusing, and perhaps the most confusing part of it is the criminal law aspect, the following table attempts to summarize what is not a crime and what is a crime.


Words may be offensive, profane and vulgar...but not be fighting words.

Words may be insulting and outrageous...but not be fighting words because there was no face-to-face confrontation.

Words may make a person or audience angry, and be impolite, rude, or insulting...but may be protected by the First Amendment.

If the person to whom the words are addressed is not angered and an immediate violent response is unlikely, there is no "fighting words" violation.

Obscenity is a different concept than "fighting words"

"Fighting words" and obscenity are considered to cause different reactions in people; anger v. sexual arousal.

Graphic sex scenes and things that are absolutely disgusting...are not necessarily obscene.

Nudity in itself is not obscene...but a community can regulate it in places where liquor is sold and when local ordinances apply.


Verbal Crimes & Elements of the Offense:

"Fighting words" (1) insult, (2) face-to-face, (3) likelihood of immediate violent response.

Obscenity (1) prurient interest*, (2) patently offensive, (3) lacks literary, artistic, political, or scientific value.

Inciting unlawful conduct (1) language directed to producing or urging, (2) imminent lawless action, (3) language likely to produce

Obstruction of justice (1) language that hinders, delays, or makes more difficult, (2) defendant knew the person obstructed was an officer, (3) physical interference, at least in part (some states only)

Defamation (libel or slander) (1) words that are false and untrue, (2) injury of character and reputation, (3) communication to third person (in some states libel deals more with accuracy and slander more with malice) - When victim is public official, reckless disregard must also be shown.

Harassment (1) telephone call deliberate, (2) intent to frighten, (3) any local ordinances that apply.

Loud Noise (1) meant by volume to disturb others, (2) clear and present danger of violence.

*for anyone who doesn't know what 'prurient' means, here's the definition:

marked by or arousing an immoderate or unwholesome interest or desire ; especially : marked by, arousing, or appealing to unusual sexual desire


mr_g said...

Interesting stuff. Though I'd always thought libel referred to the written word and slander to the spoken word...perhaps I was incorrect.

Crazy Politico said...

Cool, I'm going to edit my post and add a link to this.

Assorted Babble by Suzie said...

Thanks Rae Ann, I can always count on you to explain this so clearly. It is appreciated. (smiling)