And as far as I can tell, it wasn't that what he said was constitutionally protected. It's that the statute he was charged under was unconstitutionally broad, because it prohibited "abusive language" in general. A more specific statute, prohibiting only threats, would have likely been ruled constitutional.
I'm not sure about "likely", but upon a closer reading, I agree that the Gooding decision looks like it was mainly about the broadness of the statute. Thanks for noting that.
"threats may not be punished if a reasonable person would understand them as obvious hyperbole". Obviously, I don't know what the court would have held in this case, but it seems possible it would have held that this was "obvious hyperbole".
Could someone with legal background please explain the concept of "protected speech"?
I thought the Constitution is "where the buck stops", the Supreme Law. It takes precedent over any law, legal theory, precedent, tradition, etc.
The first amendment, as written, outright "enjoins" Congress from creating any "exceptions" or define what kinds of speech are actually protected.
I also think the Constitution provides one, and only one way for Congress to modify the 1st amendment so there can be categories of speech that can be "abridged": a constitutional amendment.
So, which kind of legal maneuvering, or reasoning as been used to somehow justify the amending of the 1st amendment without actually amending it?
"Freedom of speech" is understood to mean freedom to express any opinion or idea. It doesn't literally mean freedom to speak arbitrary words. There are many, many illegal acts which you can commit by merely speaking words, like fraud, blackmail, harassment, etc.
The buck stops where the Supreme Court says it does. They are the ones who get to decide the meaning of the words in laws and the Constitution. As a side note, the first amendment does not bind the states from creating laws that limit speech as it is written that 'Congress shall make no law...'. This comes from the Doctrine of Incorporation[1] based off of precedents set by interpretations of the Fourteenth Amendment. Now there's an amendment with an interesting history.
[1] http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Ri...
2 - Speech that incites violence or encourages the audience to commit illegal or dangerous acts.
3 - “Material support“ to domestic or foreign terrorist groups,
4 - Public speech made in the conduct of their duties by public employees.
5 - Slander, libel or defamation.
6 - Publishing confidential, trade secret, or copyright material
7 - True threats. Like many other areas of First Amendment protection, context, target, and intent matter in determining what is or is not a true threat. Some threats are always illegal — any threat to the President of the U.S., for example.
While the constitution is broad in its definition of what is free speech, local, state and the federal government still have some say in what they considered to be covered by the first amendment. Even in some cases it's arbitrary such as the Westboro Baptist Church hateful protests are legal, while a kid burning a cross is not.
I disagree about the "hate speech" one. In particular, the article you link to cites Chaplinsky, which was limited very strongly by Brandenburg, Virginia v. Black, in which the court limited the statute in question to apply only when intimidation is intended, and Hustler v. Falwell, which the article gets completely backward - Hustler won!
Exceptions to the "freedom of speech" are part of the Constitution, despite not being written in so many words, for the same reason "due process" requires a presumption of innocence, even though the latter phrase appears nowhere in the document.
