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.

  • The "National security" issues mentioned in paragraph 29 of Near are Obiter Dictia, mostly quotes from Schenck *, since overruled. There were not binding when the opinion came out, and are not good law now. This part of *Near was cited in the Pentagon Papers case and not found persuasive then. Near's only holding was to prevent an injunction that limited publication. It should not be included in the list above. Apr 27, 2021 at 14:05
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    That's an interesting reading of New York Times. Do you think the courts would still refuse to enjoin "the publication of the sailing dates of transports or the number and location of troops"?
    – bdb484
    Apr 27, 2021 at 15:07
  • Probably not, recent cases have upheld the security classification in general. But "many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight" was surely altered by various Vietnam War era cases, and Near was cited to support a much broader "National Security" exception to the 1st amendment, and that was not upheld. In any case Near did not establish any class of exceptions to the 1st, it only mentioned that such exceptions existed but were not at issue in that case. Apr 27, 2021 at 15:19
  • Yes, I agree it is dicta, but it's hard to imagine that the courts would reject that dicta if the question were properly teed up. If the Times had known in advance that Seal Team Six was about to raid Osama bin Laden's compound, do you think the courts would have refused to order an injunction to prevent disclosure of that fact until the raid was completed?
    – bdb484
    Apr 27, 2021 at 15:41
  • Probably not, direct short-term operational info clearly putting lives at risk. The PP case was about reporting history, with the only thing at risk being political reputations. On the other hand, look at The Progressive case and "The H-bomb Secret*. I wonder how that would have been written if it had gone to SCOTUS? I still say Near doesn't belong on the list, some case actually about security restrictions would do better. But I've made my point. Apr 27, 2021 at 16:07

3 Answers 3


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.


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).

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    Can you cite any law to support your answer?
    – bdb484
    Apr 27, 2021 at 13:45
  • Mostly the case law you cited above... these aren't all codified, but interpretations.
    – hszmv
    Apr 27, 2021 at 14:05
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    Can you point to any specific language that answers these questions? I'm looking for answers that include citations to the law.
    – bdb484
    Apr 27, 2021 at 14:15

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.

  • 2
    Can you cite any law to support your answer?
    – bdb484
    Apr 27, 2021 at 13:45
  • 1
    I think that is just the common principle. The jury would decide whether I did in fact say "I'll punch you" or whether I didn't, and then the jury will also decide whether saying this was for example a "true threat" or not.
    – gnasher729
    Apr 27, 2021 at 15:25
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    It may or may not be a common principle. If it is, it should be relatively easy to find a case saying so.
    – bdb484
    Apr 27, 2021 at 15:31
  • Often one of the questions of fact is what was said". Some questions may be decidable as a question of law, but that isn't universally true because words are slippery and context dependent.
    – ohwilleke
    Apr 27, 2021 at 18:20

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