Although freedom of speech, being a systematic right, is entitled to heightened protection from the government, this protection is not absolute. Our common sense tells us that freedom of speech does not include the right to tell the cashier, "I have a gun, give me the money;" nor to falsely tell a child that his or her parents have just died. As Justice Holmes said, "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
In legal practice, the Supreme Court imposes some very narrow restrictions on freedom of speech by defining a few established categories of speech, which are deemed not fully protected under the First Amendment. These categories have traditionally included advocacy of imminent illegal conduct, defamation, obscenity, and fraudulent misrepresentation. Unless the speech falls within one of these established categories, it is simply not open to the government to argue that the speech should be suppressed because of its harmful content. This can be illustrated by a closer examination of some of these categories.
One accepted basis for regulating speech is proof that the speech in question may cause imminent illegal action. The Supreme Court has generally tried to distinguish between general political dissent and advocacy of abstract theories on the other hand and incitement of particular illegal acts on the other.
The dividing line between legal advocacy and illegal incitement of criminal conduct is drawn by the use of the "clear and present danger" test. The government cannot punish speech because it has a tendency, or even a reasonable possibility, of inciting illegal conduct. Before the government can punish speech on the grounds of incitement, a three-part criterion must be met. First, the speech must be directed to inciting lawless action. Second, the advocacy must be calling for imminent breaking of the law, rather than illegal conduct at some future time. Finally, the advocacy must be likely to produce such conduct. This clear and present danger test focuses on the probability and imminence of the danger arising from the speech in question. Up to the point of clear and present danger, the evil to be prevented by outlawing the advocacy is not as great as the harm of outlawing it. At the point at which a clear and present danger becomes evident, the evil to be prevented by outlawing the advocacy of illegal conduct outweighs any damage to the right of free speech, including advocacy of illegal conduct.
The "clear and present danger" test is a very high standard to meet. In Hess v. Indiana, an antiwar protester used words such as "we'll take the fucking street later". The Supreme Court concluded that this statement could be interpreted as advocating any action. Further, it was not likely to produce imminent disorder since "at worst it amounted to nothing more than advocacy of illegal action at some indefinite future time." In NAACP v. Claiborne Hardware Co. a civil rights activist told a black audience: " If we catch any of you going in any of them racist stores, we are going to break your damn neck." The Supreme Court concluded, however, that advocacy of force and violence alone would not justify suppression. A speaker must be free "to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause." When such appeals do not incite the illegal conduct, the right to advocacy is protected.
Another well-established category of unprotected speech is defamation. False statements of fact prevent the marketplace of ideas from functioning fairly to let ideas stand or fall on their own merits. Therefore, publicizing false facts should not be protected by the right to free speech and expression. However, the line between false statements of fact and political opinion is sometimes hazy. Is "Clinton is a crook and Hilary a bitch" a statement of fact or a presentation of personal political opinion? Society highly values a citizen's right to criticize elected leaders. The Court, in New York Times v. Sullivan, announced, at least in the case of defamation of public figures, that the First Amendment protects the speaker unless the false, defamatory statement is made with knowledge that it was false or with reckless disregard of whether it was false or not.
Plaintiff in New York Times was a public official whose duties included supervising the Montgomery, Alabama Police Department. He alleged that the Times had libeled him by printing an advertisement that stated that the Montgomery police had attempted to terrorize Martin Luther King and his followers. The Supreme Court viewed this case as one involving criticism of government policy and not merely factual statements about an individual. Noting that the First Amendment was fashioned to assure unfettered interchange of ideas, the Court reiterated the Constitutional faith in the power of reason as expressed through public debate. Justice Brennan said in his opinion that public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. Still the marketplace logic does not require that all defamation be protected. While the New York Times rule fully covers speech that stems from honest participation in the marketplace of information and ideas, it need not protect a false statement made with actual malice. As Brennan later explained, the "calculated falsehood is no essential part of any exposition of ideas" and should not be protected under the Constitution.
Re: !!BAD!! the assault weapon ban may come back!!
Originally Posted by Xiahou
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The SCOTUS has allowed for infringment, to varying degrees, of virtually every right in the Bill of Rights. Instead of crying about that, I support sensible legislation that allows me to exercise my rights with minimal interfence. I felt like I was reluctantly dragged into the debate on Constitutionality and just wanted to make my views on it clear. I don't think its particularly useful when discussing 'assault' weapons or concealed carry- common sense arguments are much more meaningful. 
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