Boundaries of Free Speech
 Obscenity
 Defamation
 Hate
Speech
Chronology of Obscenity Cases
Roth v. United States (1957)
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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)
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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)
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.
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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?
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.”
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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.
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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.
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)
The current standards for obscenity
are made
a. by the Supreme Court
b. at the state level
c. at the community level
d. by Congress
Currently Supreme Court guidelines
related to obscenity:
a. assume that obscenity is protected
by the U.S. Constitution
b. allow for the application of
community standards
c. do little to allow for restriction of
child pornography
d. find it easy to separate the obscene
from that which is not
Persons may be convicted for one of
the following
a. possessing obscene materials
b. selling obscene literature
c. importing obscene literature from
abroad
d. writing obscene material
All of the following are forms of
non-protected speech except
a. libel
b. symbolic speech
c. obscenity
d. commercial speech