New York Times v.
Sullivan (1963)
By: Carmen Vaca
Unprotected Speech
 Speech that is subjected to regulations issued by the
government
 Unprotected speech can be classified into obscenity,
fighting words, fraudulent misrepresentation, advocacy
of imminent lawless behavior, and defamation.
 Threats are also treated as unprotected speech
because they constitute intimidation.
L.B. Sullivan
 Lester Bruce Sullivan (1921-1977) was the
Montgomery, Alabama Public Safety commissioner and
also a widely known segregationist.
Background
 On March 29, 1960, the NYT printed an advertisement
defending Martin Luther King Jr. against an Alabama
perjury indictment.
 The advertisement stated that the Alabama State
Police had arrested Martin Luther King Jr. seven times,
yet he had only been arrested four times at that point.
 Although L.B. Sullivan wasn’t named in the
advertisement, the inaccurate criticism of the actions by
the police was considered as defamation against him,
leading to him file a libel suit.
The Decision
 Under Alabama law, Sullivan did not have to prove he
had been harmed, and a defense claiming that the ad
was truthful was unavailable since the ad had factual
errors. Sullivan won a $500,000 judgment.
The Decision
 The Court held that the First Amendment protects the
publication of all statements, even false ones, about the
conduct of public officials except when statements are
made with actual malice (with knowledge that they are
false or in reckless disregard of their truth or falsity).
 The Court ruled for The Times, 9–0.
Consequences
 NYT v. Sullivan established the actual malice standard.
 The Supreme Court adopted the term "actual malice"
and gave it constitutional significance while defining it
based on prior decision.
Works Cited
 http://www.oyez.org/cases/1960-1969/1963/1963_39
 http://definitions.uslegal.com/u/unprotected-speech/
 http://knowledge.sagepub.com/view/100-americansmaking-constitutional-history/n88.xml
 http://www.dmlp.org/legal-guide/proving-fault-actualmalice-and-negligence
Miller v. California (1973)
Marvin Miller
 Operator of one of the largest mail-order pornography
business who conducted a mass mailing campaign to
advertise “adult” material illustrated books.
The Decision
 Miller was convicted by the Superior Court of Orange
County, California for violating California Penal Code.
 Mailing unsolicited sexually explicit material fulfilled the
criteria for obscenity formulated in a prior case –
Memoirs v. Massachusetts.
 Jury was forced to analyze California’s community
standards for obscenity.
The Decision
 The case was affirmed on appeal.
 The content that was mailed was confirmed to be
sexually explicit. It was found that the work, as a whole,
did not have any serious literary, artistic, political, or
scientific value and therefore did not obtain the
protection of the first amendment (freedom of speech).
 This was considered a misdemeanor: knowingly
distributing obscene material
 Ruling: 5 votes for Miller, 4 votes against
Consequences
 The Court acknowledged "the inherent dangers of undertaking to regulate any
form of expression," and said that "State statutes designed to regulate
obscene materials must be carefully limited.”
 They devised 3 criteria that must be met in order for something to be
legitimately subject to regulation for obscenity:
 1) Whether the average person applying contemporary community standards
(not national standards, as some prior tests required), would find that the
work, taken as a whole, appeals to the prurient interest
 2) Whether the work depicts or describes, in a patently offensive way, sexual
conduct or excretory functions specifically defined by state law
 3) Whether the work, taken as a whole, lacks serious literary, artistic, political,
or scientific value
Consequences
 This obscenity test overturns the definition of obscenity
set out in the Memoirs decision, which held that "all
ideas having even the slightest redeeming social
importance . . . have the full protection of the
guaranties [of the First Amendment]" and that obscenity
was that which was "utterly without redeeming social
importance.”
Works Cited
 http://www.oyez.org/cases/19701979/1971/1971_70_73
 http://www.casebriefs.com/blog/law/constitutionallaw/constitutional-law-keyed-to-sullivan/freedom-ofspeech-why-government-restricts-speech-unprotectedand-less-protected-expression/miller-v-california-4
 http://kids.laws.com/miller-v-california