Also known as: unprotected categories · unprotected class · unprotected classes
Written by attorneys · grounded in primary & secondary sources — see below
A category of speech that receives no First Amendment protection because its content or nature causes harm that outweighs any expressive value. The government may prohibit or regulate speech falling within such a category without satisfying strict scrutiny. Judicial evaluation determines the boundaries of each category to ensure protected expression remains outside its reach.
Select any source to read its text and confirm it supports the definition.
Uma Upadhyay sold streaming videos showing actual fourteen-year-old performers in simulated sexual acts. State prosecutors obtained an injunction halting further sales. The court upheld the order because the material fell squarely inside the unprotected category of child pornography. Uma's claim that the work possessed artistic value did not restore First Amendment protection.
Uriel Urban published a product review asserting that a speaker system produced distorted sound at moderate volumes. Bose Corporation sued for libel and obtained a judgment after trial. The appellate court conducted an independent review of the record to confirm that the statements actually fell inside the unprotected category of libel. The judgment stood only after that review confirmed the presence of a false assertion of fact.
Ursula Ureña shouted racial epithets at a passerby on a public street. City police arrested her under an ordinance that punished only fighting words targeting race or religion. The court invalidated the ordinance because it singled out disfavored subjects within the unprotected fighting words category. A content-neutral ban on all face-to-face insults likely to provoke violence would have survived.
Universal Motors placed outdoor advertisements for cigarettes near schools. City officials banned the signs under rules targeting tobacco promotion. The court treated the speech as commercial and therefore subject to regulation even though it did not fall inside a fully unprotected category. The distinction between truthful commercial speech and other forms of expression determined the level of scrutiny applied.
Usman Uddin wrote a column stating that a high-school coach had lied under oath during a disciplinary hearing. The coach sued for defamation. The court examined whether the statement implied an assertion of fact that could place it inside the unprotected category of libel. Because the column suggested verifiable falsehoods rather than pure opinion, the claim proceeded.
Una Ueda contracted to publish a memoir describing crimes she had committed. State officials blocked the book contract under a law diverting profits to crime victims. The court struck down the statute because it singled out a particular type of speech based on its content rather than placing it inside any recognized unprotected category. The law therefore triggered strict scrutiny and failed.
The Supreme Court has identified several categories that receive no First Amendment protection, including child pornography, obscenity, fighting words, incitement, and libel. Each category is defined by judicial evaluation of the harm caused by the speech. Speech falling inside these categories may be regulated without satisfying strict scrutiny.
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No. Even within an unprotected category such as fighting words, the government may not select only certain viewpoints or subjects for punishment. Such selectivity constitutes impermissible content or viewpoint discrimination. A content-neutral rule applying to the entire category remains permissible.
…the following exception onto its newly announced First Amendment rule: Content-based distinctions may be drawn within an unprotected category of speech if the basis for the distinctions is "the very reason the entire class of speech at issue is proscribable." Ante , at 388. Thus, the argument goes, the statute making it illegal…
…officer may issue any order, affecting any insignificant sort of citizen conduct (except, perhaps, an order addressed to the unprotected class
…U. S. 476 (1957), and child pornography, New York v. Ferber , 458 U. S. 747 (1982). In each of these areas, the limits of the
…of opinion imply assertions of fact. But it is a matter worthy of further attention in order "to confine the perimeters of [an] unprotected category
…characteristics of the speech that place it within the category. For example, a city may ban obscenity (because obscenity is an
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Courts conduct an independent review of the record to confirm that the speech meets the constitutional definition of the category. This review prevents overbroad application that would chill protected expression. The inquiry focuses on the specific content and context of the communication.
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No. Visual depictions of actual minors engaged in sexual conduct remain unprotected regardless of any artistic framing or simulated nature of the acts. The government's compelling interest in preventing exploitation of children controls. The Miller obscenity test does not apply when actual minors are involved.
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