Constitutionally protected speech

Speech
Speech under the law can apply to almost any from of expression, from verbal communication to writings and pictures to expressive conduct.

Constitutionally protected speech
All speech is considered constitutionally protected unless it falls within several limited exceptions. This right is derived from the first amendment of the Constitution of the United States that reads, "Congress shall make no law . . . abridging the freedom of speech." Under common law the Supreme court has limited this right by deeming certain types of speech to be outside this protection. They are: Incitement, Obscenity, Fighting words and Offensive speech, Threats, and Commercial speech. Further the Court has upheld laws that reasonably restrict speech on the basis of its time, place and manner. There is, for the most part, no black letter law as to exactly what speech is protected and what speech crosses the line. The determination is always a matter of context and the specific facts of the situation.

Incitement
Speech that is designed to incite violence is not considered protected speech. The Court in Brandenburg v. Ohio clarified this when they held that only speech that is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." In that case the court overturned the conviction of a KKK leader who espoused political reform through violence. The court held that his speech was not likely to incite imminent action and thus was protected.

Obscenity
For speech to be considered obscene and thus unprotected it must meet the three elements of the Miller test. Under the Miller test only works that depict or describe sexual conduct can be considered obscene, and further any state or federal action must be limited to, "works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." Further the court has defined prurient interest to mean "a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor"