Are unprotected-speech classifications questions of law or questions of fact?

Question

Only a few categories of speech are unprotected by the First Amendment:

1. advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio, 395 U.S. 444 (1969);
2. obscenity, see, e.g., Miller v. California, 413 U.S. 15 (1973);
3. defamation, see, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974);
4. speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949);
5. so-called “fighting words,” see Chaplinsky v. New Hampshire, 315 U.S. 568 (1942);
6. child pornography, see New York v. Ferber, 458 U.S. 747 (1982);
7. fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976);
8. true threats, see Watts v. United States, 394 U.S. 705 (1969); and
9. speech presenting some grave and imminent threat the government has the power to prevent, see Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931).

Is the classification of speech into one of these categories a question of law or question of fact? For example, if a defendant were charged with a crime based on his speech, could the judge bring the case to an early end by concluding that the speech in question was protected? Or must that determinations be left to a jury?

Does the answer change from category to category?

EDIT: I'm looking for answers with verifiable citations to the law.

Answer 1

The standard depends upon the way that the challenge is framed procedurally.

For example, State of Kansas v. Ryan Robert Johnson, 450 P.3d 790 (Kan. 2019) treats this as a question of fact with respect to a sufficiency of the evidence argument on appeal, but analyzes a facial attack on one of the alternative grounds upon which criminal sanctions may be imposed for a threat as a question of law.

The categories of speech which are sanctionable legally is a question of law.

Whether a particular instance of speech fits into those categories is sometimes a question of fact (where the exact words spoken weren't even in the record as in the Kansas case cited above), but could conceivably be a question of law in other circumstances (e.g. in most states, interpretation of a statement made in writing, whose authenticity is not disputed, is a question of law). Most often, a determination of whether a particular instance of speech fits into those categories will be a mixed question of fact and law - questions of fact as to what happened, questions of law as to whether what happened fits in a given category.

Answer 2

In any legal case where one's speech is at issue, the speech in question has the presumption of 1st Amendment protection and must be proven to be not protected in the court of law. The law gives consideration for the context in which the words were spoken and the intent of the speaker when he/she spoke those words. So in most cases, it would be a matter of fact.

However, some restrictions are matters of law. For example, Miller does say obscenities are not protected, but it does narrow who can say what is obscene ("I know it when I see it" aka its a matter for governments more local than the State level government, so it would not likely be a court that hears the case, since State Courts are the lowest judiciary level in the U.S.) and child pornography (here illegalized because the government has a compelling interest to protect children from the harm that such material causes them that out weighs any societal benefit of allowing child porn).

Answer 3

Whether the facts fall into a legal category is a mixed question

It is for the judge to explain the boundary, it is for the jury to decide which side the particular facts fall.