Boundaries of Free Speech

1. Boundaries of Free Speech • Obscenity • Defamation • Hate Speech

2. Chronology of Obscenity Cases Roth v. United States (1957) • The 1st amendment was not intended to protect every utterance or form of expression, such as materials that were “utterly without redeeming social importance.” • The Court held that the test to determine obscenity was whether the average person, applying contemporary community standards, believe the dominant theme of the material, taken as a whole, appeals to a prurient interest. • Such a definition gave sufficient fair warning and satisfied the demands of Due Process. Jacobellis V. Ohio (1964) • The states have “wide, but not federally unrestricted” power to ban obscene film. • The Constitution protected all obscenity except “hard-core pornography.” • “I shall not today attempt further to define the kinds of materials I understand to be embraced within the shorthand description: and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” (Justice Potter Stewart)

3. Chronology of Obscenity Cases Memoirs v. Massachusetts (1966) • The Court established the “utterly without redeeming social value” test. • The Court reaffirmed that the work could not be deemed obscene unless they were unqualifiedly worthless, even if it possessed prurient appeal and were ”patently offensive.” Miller v. California (1972) • The Court modified the test of obscenity established in Roth v. United States and Memoirs v. Massachusetts, holding that “the basic guidelines for the trier of fact must be: a) whether the average person, applying contemporary community standards’ would find that work, taken as a whole, appeals to a prurient interest… b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” • The Court rejected the “utterly without redeeming social value” test of the Memoir decision.

4. Miller Test • Does the average person, applying contemporary community standards, believe the dominant theme of the material, taken as a whole, appeals to a prurient interest? • (from the Roth v. United States case) • Is the material patently offensive? • Does the work, taken as a whole, lack serious literary artistic, political, or scientific value?

5. Chronology of Pornography, Obscenity, and the Internet Cases New York v. Ferber (1982) • This is the first time the Court examined a statute specifically targeted against child pornography. • The Court found that the state’s interest in preventing sexual exploitation of minors was a compelling “government objective of surpassing importance.” • The New York child pornography law was carefully drawn to protect children from the mental, physical, and sexual abuse associated with pornography while not violating the First Amendment. Reno v. American Civil Liberties Union (1997) • The Court struck down the 1996 Communications Decency Act (CDA) which prohibited the transmission of any obscene or indecent materials over the internet to anyone under the age of 18. • The law failed to include an exception for materials that has serious literary, artistic, political, or scientific value. • The law was too vague with respect to what materials would be considered “indecent.”

6. Chronology of Pornography, Obscenity, and the Internet Cases Ashcroft v. Free Speech Coalition (2002) • The Court overturned the Child Pornography Prevention Act of 1996 which attempted to prohibit “any visual depiction, including any photograph, film, video, picture, or computer or computer generated image or picture” of children engaging in sexually explicit conduct, including “virtual” child pornography. • The Court found that child abuse cannot occur when the children and their sexual acts are computer generated. Ashcroft v. American Civil Liberties Union (2004) • The Court rejected the 1998 Child Online Protection Act (COPA) which sought again to limit the transmission of materials “harmful to minors” over the internet. • The law applied the community standard principle. • The community standard principle has no application to the internet because of the unlimited geographic scope of online communications.

7. Defamation • Libel - Written defamation of another person. Especially in the case of public officials and public figures, the constitutional tests designed to restrict libel actions are very rigid. • Slander - spoken words that falsely cause injury to a person’s reputation. • Seditious libel-Defaming, criticizing, and advocating the overthrow of the government New York Times Company v. Sullivan (1964) • The Court made it more difficult for public figures to win defamation suits against critics. • The Sullivan rule requires that a public official in a libel or slander case not only prove the statements in question are false but also the defendant wrote or spoke the words with malice.

8. Hate Speech • Prejudicial and hostile statements toward another person’s innate characteristics such as race, ethnicity, gender, sexual orientation, or religion. • Major Cases: Brandenburg v. Ohio (1969) • National Socialist Party v. Skokie (1977) • R.A.V. v. City of St. Paul, Minnesota (1992) • Wisconsin v. Mitchell (1993) • Aprendi v. New Jersey (2000) • Virginia v. Black (2003) • Fighting Words: Words that by their very nature inflict injury on those to whom they are addressed or incite them to acts of violence • Major Cases: Chaplinsky v. New Hampshire (1942) • Cohen v. California (1971)

9. The current standards for obscenity are made • by the Supreme Court • at the state level • at the community level • by Congress

10. Currently Supreme Court guidelines related to obscenity: • assume that obscenity is protected by the U.S. Constitution • allow for the application of community standards • do little to allow for restriction of child pornography • find it easy to separate the obscene from that which is not

11. Persons may be convicted for one of the following • possessing obscene materials • selling obscene literature • importing obscene literature from abroad • writing obscene material

12. All of the following are forms of non-protected speech except • libel • symbolic speech • obscenity • commercial speech