A score exists only while the two actors can be held apart.

United States v. O’Brien, 391 U.S. 367 (1968)

Separates communicative from noncommunicative elements.

When speech and nonspeech are combined in one course of conduct, the nonspeech element may be regulated. A score exists only while Statement and Action can be held apart.

When “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.

Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949)

Fuses speech that is integral to illegal conduct.

Language used to carry out an unlawful course of conduct is not a second actor. The pair cannot be split; the ranker returns unscored.

It has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.

Brandenburg v. Ohio, 395 U.S. 444 (1969)

Collapses advocacy into incitement only with intent, imminence, and likelihood.

Mere advocacy stays on the Statement side. All three prongs true and the actors fuse — brigaded collapse, unscored.

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Watts v. United States, 394 U.S. 705 (1969)

Keeps political hyperbole on the Statement side.

A locution that sounds like Action and is not remains ranked. Band: hyperbole. The joke is not the burn.

We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. Debate on public issues should be uninhibited, robust, and wide-open.