In Chaplinsky v. New Hampshire1, Justice Frank Murphy says the following:
[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. 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.
The case was on appeal, but Justice Murphy upheld Chaplinsky's arrest.
This site which talks about the framers4 only references the two-tiered theory in the sidebar under the "categorical" approach name.
If I understand correctly, the two-tiered theory/categorical approach simply refers to exempting certain categories of speech from protection, such as obscenities and "fighting words". However I cannot figure out why the Supreme Court has developed it as the question asked. Some sources like this5 and this6 both contend that this approach has not been used to uphold a conviction since that one case.
Can anyone help me answer the question?
- Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942).
- Chaplinsky v. New Hampshire - Court Develops Two-tiered Theory Of The First Amendment
- First Amendment Cases
- Introduction to the Free Speech Clause
- The Categorical Approach to Protecting Speech in American Constitutional Law
- Freedom of Speech