New York v. Ferber

In a series of decisions the Supreme Court identified "fighting words," group libel, and obscenity as types of speech that lack any social benefit and deserve automatic exclusion from constitutional protection. In the 1942 Chaplinsky v. New Hampshire case, the Court ruled that fighting words are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Later cases added the importance of the circumstance in which the words are spoken. In the 1952 Beauharnais v. Illinois case, the Court held that speech attacking a class of people, such as a racial minority, constituted group libel and was not protected by the First Amendment.

A definitive Supreme Court ruling regarding obscenity did not occur until 1957 in Roth v. United States. In defining obscene, the Court held that obscenity was a category of speech "utterly without redeeming social importance." Obscenity could not be sex alone, but sex portrayed in the most indecent manner. The Court, in establishing a new category of speech unprotected by the First Amendment, proclaimed obscenity as unworthy of any level of acceptability. In Miller v. California (1973), the Court revised Roth by establishing a test to determine if certain material was obscene and to balance states' interests in restricting pornography with speech censorship. The test involved determining if the speech was: (1) improper based on state or local "contemporary community standards" rather than on national standards under Roth; (2) obviously sexually offensive as banned by the law; and, (3) of no serious political, scientific, literary, or artistic value.

The Court considered state laws restricting speech based on content, such as fighting words, group libel, and obscenity, appropriate only when the restrictions were very specifically defined and applied. The Court considered speech not included in these categories protected unless presenting a "clear and present danger" of substantial harm to someone.