The Limits Of First Amendment Protection

A. “Fighting Words”

1.
Free speech does not apply to “fighting words.” These are words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

2.
“Fighting words” fall outside First Amendment protection because they:

a.Form no essential part of any exposition of ideas; and

b.Are of such slight social value that society’s interest in order and morality outweighs any benefit derived from them.

B. Defamation

1. Public Officers
First Amendment protection extends to defamation of a public officer’s official conduct, since such conduct is a matter of public concern. It does not apply, however, to defamation made with actual malice, i.e., with knowledge of falsehood or with reckless disregard of whether or not a statement is false.

2. Public Figures

a.Erroneous statements about public figures receive First Amendment immunity, even if such statements intentionally inflict emotional distress. Immunity does not apply to defamation made with actual malice. Even without actual malice, however, publishers may be liable for defaming public figures when:

i. The substance of the defamation risks substantial danger to reputation; and
ii. The publisher engages in highly unreasonable conduct departing in the extreme from professional standards.

b. The media are not protected by rights of free speech and press for obtaining news information through such misconduct as tortious or criminal activity. This is particularly true where the information is of minimal value to the public.

3. Private Figures
The First Amendment does not shield the media from liability for defamation of private figures.