O’Brien Test:
The Government:
(a) must possess a valid and
IMPORTANT (or SUBSTANTIAL)
governmental interest— that is
(b) Unassociated with or unrelated to the
suppression of free speech
(i.e. the statute is not directed at
repressing free speech, but rather at the
important governmental interest).
AND
(c) The restriction on 1st Amendment
freedom can be no greater than is
necessary or essential to the furtherance
of that interest
(i.e. the statute is narrowly tailored so that it
does not repress free speech more than is
necessary to further the governmental
interest. One might even say that the means
employed [the statute] are the least injurious
to the free speech interest.)
-------------------------------------------------What we are really doing here is creating
a different test from the normal test in
Con Law, different from the rational
basis test.
The statute must be justified by more than
any regular legitimate interest— i.e. the
governmental action or statute needs to
have as a justification an “important”
governmental interest (higher than a
legitimate interest), and the means
employed (the statute) must be narrowly
tailored to achieve that end so that it
restricts free speech no greater than is
necessary to pursue that important
governmental interest.
Here are Chief Justice Earl Warren’s
words in O’Brien:
“…we think it clear that a government
regulation is sufficiently justified if it is
within the constitutional power of the
government; if it furthers an important or
substantial governmental interest; if the
governmental interest is unrelated to the
suppression of free expression; and if the
incidental restriction on alleged First
Amendment freedoms is no greater than is
essential to the furtherance of that interest.
Miller Test
(Miller v. California):
To the average person, applying
contemporary community standards
the work taken as a whole, appeals to
the prurient interests…
patently offensive depictions of sexual
conduct
the work is without serious literary,
artistic, political or scientific value
Also, state standards (for “community
standards”) are acceptable
And, statute must have specificity in what
is prohibited
---------------------------
Then, Jenkins v. Georgia clarifies Miller,
in that what is patently offensive is not
left solely to the unbridled discretion of
the jury.
Then, Pope v. Illinois clarifies the Miller
test, also. The average person (standard)
does not state whether a work has serious
literary, artistic, political or scientific
value—the rational person standard is
employed to make that judgment.