Defaming and libelous speech, words which pose an imminent danger, fighting words, and obscenity are unprotected by the First Amendment

1. Defaming and libelous speech, incl.
   • Perjury
   • Blackmail
   • True threats
   • Treason
2. Words which pose an imminent danger
   • Schenck v. United States (1919): anti-war activist arrested for sending out leaflets against the WWI draft
     • Court unanimously upheld arrest
       • Cannot be “falsely shouting fire in a theatre”
       • Create “clear and present danger” — wartime
   • Brandenburg v. Ohio (1969) → limited to speech that would incite “imminent lawless action”
3. Fighting words
   • Chaplinsky v. New Hampshire (1942): a man distributing anti-religious pamphlets was arrested for calling a town official “a goddamned racketeer” and “a damned fascist”
     • Court unanimously upheld arrest
       • “insulting or ‘fighting’ words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”
     • Severely limited, SCOTUS has never upheld conviction based on “fighting words” since 1942, but yet to be overheard
4. Obscenity
   • Since 1868, Court has ruled “obscene material is not protected by the First Amendment”
   • But what is obscene?
     • Usually visual imagery
     • Justice Potter Stewart (1964): “I know it when I see it”
   • Miller v. California (1973): established the 3-prong “Miller test”, primarily for visual obscenity
     1. Whether the work, when “applying contemporary community standards, … appeals to the prurient interest”
        • Prurient: having or encouraging an excessive interest in sexual matters
     2. Whether the work describes “in a patently offensive way” sexual conduct (or excretory functions) as defined by state law
     3. Whether the work, taken as a whole, “lacks serious literary, artistic, political, or scientific value”
        • National check beyond community