Two-Tiered Theory of Freedom of Speech

One of the earliest approaches to First Amendment methodology was the ‘‘two-tiered’’ theory of freedom of speech, sometimes called the ‘‘categorical’’ approach. Under this theory speech is deemed to be protected unless it falls within some defined category of unprotected expression, such as obscenity, libel, or ‘‘fighting words.’’ Speech falling into the list comprising the ‘‘lower tier’’ gets zero First Amendment protection.

The two-tiered theory is most famously associated with the Supreme Court’s decision in Chaplinksy v. New Hampshire (315 U.S. 568, 1942). The critical passage from Chaplinksy, one of the most often quoted in the American free speech tradition, is:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘‘fighting’’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Chaplinsky remains an often cited opinion, and the preceding passage continues to have adherents among scholars and jurists. Nonetheless, as a working methodology, the simplistic two-tiered approach has largely been abandoned in modern First Amendment jurisprudence. We now extend ample First Amendment protection to speech in categories once deemed unprotected, such as speech that is lewd, profane, or libelous. Conversely, in certain circumstances, speech not falling within those categories is often subject to significant regulation. Most importantly, the primitive ‘‘all or nothing’’ approach to free speech problems has been displaced by a far more complex body of First Amendment law in which highly refined and specialized tests exist for specific types of speech regulation, such as libel, invasion of privacy, obscenity, threats, incitement, commercial speech, political campaign regulation, and so on.

RODNEY A. SMOLLA

References and Further Reading

  • Smolla, Rodney. Smolla and Nimmer on Freedom of Speech. New York: Thomson/West, 2005, } 2:70.

Cases and Statutes Cited

  • Chaplinksy v. New Hampshire, 315 U.S. 568 (1942)

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