The First Amendment permits criminal punishment for speech only when it falls within an established exception. True threats, incitement to violence, obscenity, and fighting words are among the categories of speech falling outside the protections of the First Amendment (although the fighting words exception is arguably defunct as a practical matter, as I wrote here). Each category has narrow definitions and standards that must be met as a matter of constitutional law before criminal liability can be imposed. My former colleague Jonathan Holbrook has written about the incitement exception and the true threats exception before. I wanted to write about another First Amendment exception, one that is much broader than the rest—speech integral to criminal conduct. Read on for the details. Speech Integral to Criminal Conduct. In the words of the U.S. Supreme Court: “Speech intended to bring about a particular unlawful act has no social value; therefore, it is unprotected.” U.S. v. Hansen, 143 S.Ct. 1932, 1947 (2023) (citation omitted). While now well-established as an exception to protected speech, it is admittedly a confusing and arguably ill-defined one. The North Carolina Court of Appeals has categorized this “nebulous” exception so: “[T]he speech must be itself proximately linked to a criminal act and cannot serve as the basis for the criminal act itself. Stated differently, there must be non-speech conduct to which the speech is integral.” State v. Shackelford, 264 N.C. App. 542, 563 (2019) (Murphy, J., concurring). Courts applying the exception often forgo a more traditional First Amendment analysis. See, [...]
Faculty Coordinators
