First Amendment — Free Speech Clause: Categorical Approach

Amdt1.7.5.1 Overview of Categorical Approach to Restricting Speech

While content-based restrictions on protected speech are presumptively unconstitutional, the Supreme Court has recognized that the First Amendment permits restrictions upon the content of speech falling within a few limited categories, including obscenity, child pornography, defamation, fraud, incitement, fighting words, true threats, and speech integral to criminal conduct.¹ This “limited categorical approach”² to content-based regulations of speech derives from Chaplinsky v. New Hampshire, wherein the Court opined that there exist “certain well- defined and narrowly limited classes of speech [that] are no essential part of any exposition of ideas, and are of such slight social value as a step to truth” such that the government may prevent those utterances and punish those uttering them without raising any constitutional issues.³ More recent decisions of the Court reflect a reluctance to add any new categories of excepted speech and an inclination to interpret narrowly the excepted categories of speech that have long-established roots in First Amendment law.⁴ Further, a 1992 decision cautioned that although “these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.),” these categories are not “entirely invisible to the Constitution.”⁵ Specifically, the Court said a regulation of one of these categories of speech might still violate the First Amendment if it contained additional content- or viewpoint-based distinctions unrelated to the proscribable content: while “the government may proscribe libel . . . it may not make the further content discrimination of proscribing only libel critical of the government.”⁶

Amdt1.7.5.2 Early Doctrine of Incitement

Criminal punishment for advocating illegal or merely unpopular goals and ideas did not originate in the United States with the post-World War II concern with Communism. Prosecutions occurred under the Sedition Act of 1798,¹ and under the federal espionage laws² and state sedition and criminal syndicalism laws³ in the 1920s and early 1930s.⁴ Certain expression, oral or written, may incite, urge, counsel, advocate, or importune the commission of criminal conduct; other expression, such as picketing, demonstrating, and engaging in certain forms of “symbolic” action, may either counsel the commission of criminal conduct or itself constitute criminal conduct. Setting aside the problem of symbolic action,⁵ the Court had to determine when expression that may be a nexus to criminal conduct is subject to punishment and restraint. Initially, the Court seemed disposed in the few cases reaching it to rule that if the conduct could be made criminal, advocating or promoting the conduct could be made criminal.⁶

In the Court’s 1919 decision Schenck v. United States,⁷ which concerned defendants convicted of violating the Espionage Act by disseminating leaflets seeking to disrupt recruitment of military personnel, Justice Oliver Wendell Holmes formulated the “clear and present danger” test that governed this area for decades. To determine whether speech could be proscribed, he said, “[t]he question . . . is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”⁸ Consequently, the Court unanimously affirmed the convictions. One week later, in Frohwerk v. United States, the Court again unanimously affirmed convictions under the same act with Justice Holmes writing, “the First Amendment . . . obviously was not[ ] intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.”⁹ And, in Debs v. United States,¹⁰ Justice Holmes upheld a conviction because “the natural and intended effect” and the “reasonably probable effect” of the speech for which the defendant was prosecuted was to obstruct military recruiting.

In Abrams v. United States,¹¹ however, Justices Holmes and Louis Brandeis dissented on affirming the convictions of several alien anarchists who had printed leaflets seeking to encourage discontent with the United States’ participation in World War I. The majority simply referred to Schenck and Frohwerk to rebut the First Amendment argument, but the dissenters urged that the government had made no showing of a clear and present danger. Another case in which the Court affirmed a conviction by simply saying that “[t]he tendency of the articles and their efficacy were enough for the offense” drew a similar dissent.¹²

The Court did not invariably affirm convictions during this period in cases like those under consideration. In Fiske v. Kansas,¹³ the Court held that a criminal syndicalism law had been invalidly applied to convict one against whom the only evidence was the “class struggle” language of the constitution of the organization to which he belonged. A conviction for violating a “red flag” law was voided because the statute was found unconstitutionally vague.¹⁴ Neither case mentioned clear and present danger. An “incitement” test seemed to underlie the opinion in DeJonge v. Oregon,¹⁵ upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an organization that was said to advocate violence as a political method, although the meeting was orderly and no violence was advocated during it. In Herndon v. Lowry,¹⁶ the Court narrowly rejected the contention that the standard of guilt could be made the “dangerous tendency” of one’s words, and indicated that the power of a state to abridge speech “even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.”

Finally, in Thornhill v. Alabama,¹⁷ a state anti-picketing law was invalidated because “no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter.” During the same term, the Court reversed the breach of the peace conviction of a Jehovah’s Witness who had played an inflammatory phonograph record to persons on the street, the Court discerning no clear and present danger of disorder.¹⁸

The Court also applied the clear and present danger test in Terminiello v. City of Chicago,¹⁹ in which a 5-4 majority struck down a conviction obtained after the judge instructed the jury that a breach of the peace could be committed by speech that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” Justice William O. Douglas wrote for the majority that:

[A] function of free speech under our system of government is to invite dispute. It may

indeed best serve its high purpose when it induces a condition of unrest, creates

dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often

provocative and challenging. It may strike at prejudices and preconceptions and have

profound unsettling effects as it presses for acceptance of an idea. That is why freedom

of speech, though not absolute, . . . is nevertheless protected against censorship or

punishment, unless shown likely to produce a clear and present danger of a serious

substantive evil that rises far above public inconvenience, annoyance, or unrest.²⁰

The dissenters focused on the disorders that had actually occurred as a result of Terminiello’s speech, Justice Robert Jackson saying: “Rioting is a substantive evil, which I take it no one will deny that the State and the City have the right and the duty to prevent and punish . . . . In this case the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate.”²¹ The disorderly consequences of speech were emphasized in Feiner v. New York,²² in which Chief Justice Fred Vinson said that “[t]he findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner’s deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.”

Amdt1.7.5.3 Incitement Movement from Clear and Present Danger Test

In Gitlow v. New York,¹ a conviction for distributing a manifesto in violation of a law making it criminal to advocate, advise, or teach the duty, necessity, or propriety of overthrowing organized government by force or violence, the Court affirmed in the absence of any evidence regarding the effect of the distribution and in the absence of any contention that it created any immediate threat to the security of the state. In so doing, the Court distinguished the “clear and present danger” test used in Schenck: Schenck governed “cases where the statute merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself, and it is sought to apply its provisions to language used by the defendant for the purpose of bringing about the prohibited results.”² By contrast, in Gitlow, the Court observed that “the legislative body itself ha[d] previously determined the danger of substantive evil arising from utterances of a specified character.”³ Thus, a state legislative determination “that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power” was almost conclusive to the Court.⁴

In Whitney v. California,⁵ the Court affirmed a conviction under a criminal syndicalism statute based on the defendant’s association with and membership in an organization that advocated the commission of illegal acts, finding again that the determination of a legislature that such advocacy involves “danger to the public peace and the security of the State” was entitled to almost conclusive weight. In a technical concurrence on procedural grounds, which in fact disagreed with the substance of the majority opinion, Justice Louis Brandeis restated the “clear and present danger” test, saying “even advocacy of violation [of the law] . . . is not a justification for denying free speech where the advocacy fails short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. . . . In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.”⁶

In Dennis v. United States,⁷ the Court sustained the constitutionality of the Smith Act,⁸ which proscribed advocacy of the overthrow by force and violence of the government of the United States, and upheld convictions under it. The plurality opinion in Dennis recognized that Whitney and Gitlow had largely been superseded by Schenck, and applied a revised version of the clear and present danger test to conclude that the evil sought to be prevented was serious enough to justify suppression of speech.⁹ The plurality said the phrase “clear and present danger” should not “be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case.”¹⁰ Many of the cases in which it had previously been used to reverse convictions had turned “on the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction of speech.”¹¹

By contrast, in Dennis, the plurality reasoned that “[o]verthrow of the government by force and violence is certainly a substantial enough interest for the government to limit speech.”¹² Further, the plurality said the government did not need to wait to act until the plan was set in action.¹³ The Court adopted a flexible version of the “clear and present danger” test: “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”¹⁴ The “requisite danger” of a conspiracy was found to justify the convictions.¹⁵

The clear and present danger test was a lighter restriction on governmental power after Dennis, and it virtually disappeared from the Court’s language over the next twenty years.¹⁶ Its replacement for part of this period was the much disputed “balancing” test, which made its appearance the year before Dennis in American Communications Ass’n v. Douds.¹⁷ There the Court sustained a law barring the National Labor Relations Board from investigating a labor union’s petition if any of its officers failed to file annually an oath disclaiming membership in the Communist Party and belief in the violent overthrow of the government.¹⁸ Chief Justice Fred Vinson, for the Court, rejected reliance on the clear and present danger test because the government’s interest in the law was “not in preventing the dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result therefrom if free speech is practiced.”¹⁹ Instead, the Court concluded that the law did not interfere with speech—the government’s interest was “in protecting the free flow of commerce from what Congress considers to be substantial evils of conduct that are not the products of speech at all.”²⁰ In evaluating the permissibility of the oath, the Court said it had to balance “the conflicting individual and national interests.” The Court further reasoned, “When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented.”²¹ As the interest in the restriction, the government’s right to prevent political strikes and disruption of commerce, was much more substantial than the limited interest on the other side in view of the relative handful of persons affected in only a partial manner, the Court perceived no difficulty upholding the statute.²²

During the 1950s and early 1960s, the Court used the balancing test in decisions that did not concern threatening expression or advocacy but rather governmental inquiries into or regulation of associations and personal beliefs premised on these being predictive of future or intended conduct that government could regulate or prohibit. Thus, in the leading case on balancing, Konigsberg v. State Bar of California,²³ the Court upheld a state’s refusal to certify an applicant for admission to the bar. Describing the relevant analysis, the Court said “general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved.”²⁴

The Court used balancing to sustain congressional and state inquiries into associations and individual activities that were alleged to be subversive²⁵ and proceedings against the Communist Party and its members.²⁶ The Court did not use balancing, however, when it struck down restrictions on receiving materials mailed from Communist countries²⁷ or in cases involving picketing, pamphleteering, and demonstrating in public places.²⁸ But the only case in which the Court specifically rejected balancing involved a statutory regulation like those that had led the Court to adopt the test in the first place. In United States v. Robel,²⁹ the Court held invalid under the First Amendment a statute that made it unlawful for any member of an organization that the Subversive Activities Control Board had ordered to register to work in a defense establishment.³⁰ Writing for the Court, Chief Justice Earl Warren reasoned that the law was flawed because its proscription operated per se “without any need to establish that an individual’s association poses the threat feared by the Government in proscribing it,”³¹ and, as a result, the rationale of the decision was not clear and present danger but the existence of less restrictive means by which the governmental interest could be accomplished.³² In a concluding footnote, the Court said: “It has been suggested that this case should be decided by ‘balancing’ the governmental interests . . . against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. . . . We have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict.”³³

The government used the Smith Act provision criminalizing organizing or becoming a member of an organization that teaches, advocates, or encourages the overthrow of government by force or violence against Communist Party members. In Scales v. United States,³⁴ the Court affirmed a conviction and held it constitutional against First Amendment attack. Advocacy such as the Communist Party engaged in, Justice John Harlan wrote for the Court, was unprotected under Dennis, and he could see no reason why membership that constituted a purposeful form of complicity in a group engaging in such advocacy should be a protected form of association. Of course, he observed “[i]f there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but the membership clause . . . does not make criminal all association with an organization which has been shown to engage in illegal advocacy.”³⁵ Only an “active” member of the Party—one who with knowledge of the proscribed advocacy intends to accomplish the aims of the organization—was to be punished, the Court said, not a “nominal, passive, inactive or purely technical” member.³⁶

Amdt1.7.5.4 Incitement Current Doctrine

In Brandenburg v. Ohio,¹ the Supreme Court reversed a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terrorist means to achieve political change. The prevailing doctrine developed in the Communist Party cases was that “mere” advocacy was protected but that a call for concrete, forcible action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected association, regardless of the probability of success.² In Brandenburg, however, the Court reformulated these and other rulings to mean “that 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.”³ The Court has applied the Brandenburg formulation in subsequent cases, although a number of questions remain with respect to the imminence and likelihood aspects of the standard.⁴

Amdt1.7.5.5 Fighting Words

In Chaplinsky v. New Hampshire,¹ the Court unanimously sustained a conviction under a state law proscribing “any offensive, derisive or annoying word” addressed to any person in a public place after accepting the state court’s interpretation of the statute as being limited to “fighting words”—that is, to words that “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” The Court sustained the statute as “narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.”² The Court further explained that “by their very utterance,” fighting words “inflict injury or tend to incite an immediate breach of the peace.”³ Accordingly, “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”⁴

Chaplinsky still remains viable for the principle that “the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called ‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.”⁵ But, in actuality, the Court has closely scrutinized statutes on vagueness and overbreadth grounds and set aside convictions as not being within the doctrine. Chaplinsky thus remains the governing standard, but the Court has not upheld a government action on the basis of that doctrine since Chaplinsky itself.⁶

In the related “hostile audience” situation, the Court sustained a conviction for disorderly conduct of one who refused police demands to cease speaking after his speech seemingly stirred numbers of his listeners to mutterings and threatened disorders.⁷ But this case has been significantly limited by cases that hold the Fifth Amendment protects the peaceful expression of views that stirs people to anger because of the content of the expression, or perhaps because of the manner in which it is conveyed, and that government may not use breach of the peace and disorderly conduct statutes to curb such expression. Specifically, the Court has held that “speech cannot be restricted simply because it is upsetting or arouses contempt,” at least when the speech occurs in “a public place on a matter of public concern.”⁸

The cases are unclear as to what extent the police must go to protect a speaker against hostile audience reaction or whether only actual disorder or a clear and present danger of disorder entitles the authorities to terminate the speech or other expressive conduct.⁹ The Court has also held that, absent incitement to illegal action, government may not punish mere expression or proscribe ideas,¹⁰ regardless of the trifling or annoying caliber of the expression.¹¹

Amdt1.7.5.6 True Threats

The Supreme Court has cited three “reasons why threats of violence are outside the First Amendment”—“protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.”¹ In Watts v. United States, however, the Court held that only “true” threats are outside ordinary First Amendment protections.² The defendant in Watts expressed his opposition to the military draft at a public rally, saying, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.”³ He was convicted of violating a federal statute that prohibited “any threat to take the life of or to inflict bodily harm upon the President of the United States.” The Supreme Court reversed. Interpreting the statute “with the commands of the First Amendment clearly in mind,”⁴ the Court found that the defendant had not made a “true ‘threat,’” but had indulged in mere “political hyperbole.”⁵

In NAACP v. Claiborne Hardware Co., White merchants in Claiborne County, Mississippi, sued the NAACP to recover losses caused by a boycott by Black citizens of their businesses, and to enjoin future boycott activity.⁶ During the course of the boycott, NAACP Field Secretary Charles Evers told an audience of “black people that any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.”⁷ The Court acknowledged that this language “might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence.”⁸ Yet, no violence had followed directly from Evers’ speeches, and the Court found that Evers’ “emotionally charged rhetoric did not transcend the bounds of protected speech set forth in Brandenburg. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”⁹ Although the Court held that, under Brandenburg, Evers’ speech did not constitute unprotected incitement of lawless action,¹⁰ the Court also cited Watts, thereby implying that Evers’ speech also did not constitute a “true threat.”¹¹

In 2003’s Virginia v. Black, the Supreme Court considered a First Amendment challenge to a state law that banned cross burning carried out with the intent to intimidate.¹² The Court held that, at least in theory, states could prohibit such cross burnings as a “true threat.”¹³ Specifically, intimidation can be prohibited as “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”¹⁴ Cross burning could fall within this category of “intimidating speech,” given that the “history of cross burning in this country” demonstrated they were often “intended to create a pervasive fear in victims that they are a target of violence.”¹⁵ However, the Court concluded that the specific state law before it was unconstitutional insofar as it allowed the mere fact of cross burning to provide prima facie evidence of the intent to intimidate, creating a chill on constitutionally protected speech.¹⁶

Amdt1.7.5.7 Defamation

One of the most foundational cases in First Amendment jurisprudence occurred in 1964 with the Court’s decision in New York Times Co. v. Sullivan.¹ The Times had published a paid advertisement by a civil rights organization criticizing the response of a Southern community to demonstrations led by Dr. Martin Luther King and containing several factual errors. The plaintiff, a city commissioner in charge of the police department, claimed that the advertisement had libeled him even though he was not referred to by name or title and even though several of the incidents described had occurred prior to his assumption of office. Unanimously, the Court reversed the lower court’s judgment for the plaintiff. To the contention that the First Amendment did not protect libelous publications, the Court replied that constitutional scrutiny could not be completely foreclosed by the “label” attached to something. The Court said libel could “claim no talismanic immunity from constitutional limitations,” and the standards for proving defamation must “satisfy the First Amendment.”² The Court considered the case “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”³ Because the advertisement was “an expression of grievance and protest on one of the major public issues of our time, [it] would seem clearly to qualify for the constitutional protection [unless] it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.”⁴

Prior interpretations had established that the First Amendment contained no exception “for any test of truth.”⁵ The Court explained that error is inevitable in any free debate, to place on the speaker the burden of proving truth would introduce self-censorship and stifle the free expression which the First Amendment protects.⁶ Nor would injury to official reputation afford a warrant for repressing otherwise free speech. Public officials are subject to public scrutiny and “[c]riticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputation.”⁷ Ultimately, the Court said the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”⁸

In the wake of the Times ruling, the Court decided two cases involving the type of criminal libel statute upon which Justice Felix Frankfurter had relied in analogy to uphold the group libel law in Beauharnais v. Illinois, discussed in a subsequent essay.⁹ In neither case did the Court apply the concept of Times to void them altogether. Garrison v. Louisiana¹⁰ held that a statute that did not incorporate the Times rule of “actual malice” was invalid, while in Ashton v. Kentucky¹¹ a common-law definition of criminal libel as “any writing calculated to create disturbances of the peace, corrupt the public morals or lead to any act, which, when done, is indictable” was too vague to be constitutional.

Subsequent cases elaborated which defamed individuals had to satisfy the Times rule. Explaining the definition of a “public official,” the Court said this includes “at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.”¹² But the Court appeared to expand the concept of “public official” to take on overtones of anyone holding public elective or appointive office.¹³ Moreover, candidates for public office were subject to the Times rule and comment on their character or past conduct, public or private, insofar as it touches upon their fitness for office, is protected.¹⁴

Thus, a wide range of reporting about both public officials and candidates was quickly held to be subject to heightened constitutional standards. While the First Amendment protects scrutiny and criticism of the conduct of official duties by public officials,¹⁵ the Court has also held that criticism that reflects generally upon an official’s integrity and honesty is protected.¹⁶ Candidates for public office, the Court has said, place their whole lives before the public, and it is difficult to see what criticisms could not be related to their fitness.¹⁷

Only three years after its Sullivan decision, the Court said the First Amendment also required a heightened standard to prove defamation of a “public figure,” which included those otherwise private individuals who have attained some prominence, either through their own efforts or because it was thrust upon them, with respect to a matter of public interest, or, in Chief Justice Earl Warren’s words, those persons who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.”¹⁸ Later, the Court curtailed the definition of “public figure” by playing down the matter of public interest and emphasizing that one becomes a “public figure” by voluntarily assuming a role in public affairs.¹⁹

Second, in a fragmented ruling, the Court applied the Times standard to private citizens who had simply been involved in events of public interest, usually, though not invariably, not through their own choosing.²⁰ But, in Gertz v. Robert Welch, Inc.²¹ the Court clarified that Sullivan’s actual malice standard did not apply to any defamation on a matter of public concern. Instead, persons who are neither public officials nor public figures may recover for the publication of defamatory falsehoods so long as state defamation law establishes a standard higher than strict liability, such as negligence; damages may not be presumed, however, but must be proved, and punitive damages will be recoverable only upon the Times showing of “actual malice.”²²

Subsequent cases have revealed a trend toward narrowing the scope of the “public figure” concept. A socially prominent litigant in a particularly messy divorce controversy was held not to be such a person,²³ and a person convicted years before of contempt after failing to appear before a grand jury was similarly not a public figure even as to commentary with respect to his conviction.²⁴ Also the Court deemed a scientist who sought and received federal grants for research, the results of which were published in scientific journals, not to be a public figure for purposes of an allegedly defamatory comment about the value of his research.²⁵ Public figures, the Court reiterated, are those who (1) occupy positions of such persuasive power and influence that they are deemed public figures for all purposes or (2) have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved, and are public figures with respect to comment on those issues.²⁶

The Court has elaborated on the principles governing defamation actions brought by private figures. First, when a private plaintiff sues a media defendant for publication of information that is a matter of public concern—such as the Gertz situation—the burden is on the plaintiff to establish the information is false. Thus, the Court held in Philadelphia Newspapers v. Hepps,²⁷ the common law rule that defamatory statements are presumptively false must give way to the First Amendment interest that true speech on matters of public concern not be inhibited. This means, as the dissenters noted, that a Gertz plaintiff must establish falsity in addition to establishing some degree of fault (for example, negligence).²⁸ On the other hand, the Court held in Dun & Bradstreet v. Greenmoss Builders that the Gertz standard limiting award of presumed and punitive damages applies only in cases involving matters of public concern, and that selling credit reporting information to subscribers is not such a matter of public concern.²⁹ The Court has left unclear whether it matters if the defendant to the defamation suit is from the media rather than a private person. The plurality in Dun & Bradstreet declined to follow the lower court’s rationale that Gertz protections are unavailable to nonmedia defendants, and a majority of Justices agreed on that point.³⁰ In Philadelphia Newspapers, however, the Court expressly reserved the issue of “what standards would apply if the plaintiff sues a nonmedia defendant.”³¹

Other issues besides who is covered by the Times privilege are of considerable importance. The Court has distinguished “actual malice” from the common law meaning of malice.³² Under Times, constitutional “actual malice” means the defendant published the defamation with knowledge that it was false or with reckless disregard of whether it was false.³³ Reckless disregard is not simply negligent behavior, but publication with serious doubts as to the truth of what is uttered.³⁴ A defamation plaintiff under the Times or Gertz standard has the burden of proving by “clear and convincing” evidence, not merely by the preponderance of evidence standard generally used in civil cases, that the defendant acted with knowledge of falsity or with reckless disregard.³⁵ Moreover, the Court has held, a Gertz plaintiff has the burden of proving the actual falsity of the defamatory publication.³⁶ A plaintiff suing the press for defamation under the Times or Gertz standards is not required to prove his case or establish “actual malice” absent discovery of the defendant’s editorial processes.³⁷ Through discovery, the plaintiff may inquire into the defendant’s state of mind; his thoughts, opinions, and conclusions with respect to the material he gathered; and how he reviewed and handled it. As with other areas of protection or qualified protection under the First Amendment (as well as some other constitutional provisions), appellate courts, and ultimately the Supreme Court, must independently review the findings below to ascertain that constitutional standards were met.³⁸

While the Court had suggested in dicta that statements of opinion, unlike assertions of fact, might be absolutely protected,³⁹ the Court held in Milkovich v. Lorain Journal Co.⁴⁰ that there is no constitutional distinction between fact and opinion, hence no “wholesale defamation exemption” for any statement that can be labeled “opinion.”⁴¹ Instead, the issue is whether, regardless of the context in which a statement is uttered, the statement is sufficiently factual to be susceptible of being proved true or false. Thus, if statements of opinion may “reasonably be interpreted as stating actual facts about an individual,”⁴² then the truthfulness of the factual assertions may be tested in a defamation action. There are sufficient protections for free public discourse already available in defamation law, the Court concluded, without creating “an artificial dichotomy between ‘opinion’ and fact.”⁴³

In Masson v. New Yorker Magazine,⁴⁴ the Court considered whether a publisher’s alterations to quotations attributed to a public figure met the actual malice standard given journalistic conventions allowing publishers to make some alterations to correct grammar and syntax. The Court ruled that “a deliberate alteration of words [in a quotation] does not equate with knowledge of falsity for purposes of [New York Times] unless the alteration results in a material change in the meaning conveyed by the statement.”⁴⁵

Amdt1.7.5.8 Application of Defamation Cases to Group Libel, Hate Speech

In Beauharnais v. Illinois,¹ relying on dicta in past cases,² the Court upheld a state group libel law that made it unlawful to defame a race or class of people. The defendant had been convicted under this statute after he had distributed a leaflet, part of which was in the form of a petition to his city government, taking a hard-line white-supremacy position and calling for action to keep African Americans out of White neighborhoods. Justice Felix Frankfurter for the Court sustained the statute along the following reasoning. Libel of an individual, he established, was a common-law crime and was now made criminal by statute in every state in the Union. These laws raise no constitutional difficulty because libel is within that class of speech that is not protected by the First Amendment. If an utterance directed at an individual may be the object of criminal sanctions, then no good reason appears to deny a state the power to punish the same utterances when they are directed at a defined group, “unless we can say that this is a willful and purposeless restriction unrelated to the peace and well-being of the State.”³ Justice Felix Frankfurter then reviewed the history of racial strife in Illinois to conclude that the legislature could reasonably have feared substantial evils from defamatory racist statements. He also held that the Constitution did not require states to accept a defense of truth, because historically a defendant had to show not only truth but publication with good motives and for justifiable ends.⁴

The holding of Beauharnais, premised in part on the categorical exclusion of defamatory statements from First Amendment protection, has been undercut by subsequent developments, including the Court’s subjecting defamation law to First Amendment challenge and endorsing “uninhibited, robust, and wide-open” debate on public issues in New York Times Co. v. Sullivan.⁵ Further, in R.A.V. v. City of St. Paul, the Court, in an opinion by Justice Antonin Scalia, explained and qualified the categorical exclusions for defamation, obscenity, and fighting words. These categories of speech are not “entirely invisible to the Constitution,” even though they “can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content.”⁶ Content discrimination unrelated to that “distinctively proscribable content,” however, runs afoul of the First Amendment.⁷ Therefore, the city’s bias-motivated crime ordinance, interpreted as banning the use of fighting words known to offend on the basis of race, color, creed, religion, or gender, but not on such other possible bases as political affiliation, union membership, or homosexuality, was invalidated for its content discrimination. Consequently, the R.A.V. Court held: “The First Amendment does not permit [the city] to impose special prohibitions on those speakers who express views on disfavored subjects.”⁸

In Virginia v. Black, the Court held that its opinion in R.A.V. did not make it unconstitutional for a state to prohibit burning a cross with the intent of intimidating any person or group of persons.⁹ The state law did not single out only speech on certain disfavored topics; nor, as a factual matter, did all “cross burners direct their intimidating conduct solely to racial or religious minorities.”¹⁰ Under R.A.V., the statute permissibly targeted a subset of true threats “because burning a cross is a particularly virulent form of intimidation.”¹¹

The Court has also struck down non-libel legislation intended to prevent offense of individuals and groups of people as unconstitutional. For example, in Matal v. Tam, the Supreme Court considered a federal law prohibiting registering trademarks that “may disparage . . . or bring . . . into contempt[ ] or disrepute” any “persons, living or dead.”¹² In Tam, the Patent and Trademark Office rejected a trademark application for THE SLANTS for an Asian-American dance-rock band because it found the mark may be disparaging to Asian Americans.¹³ The Court held that the disparagement provision violated the Free Speech Clause as “[i]t offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”¹⁴ Two years later, the Court invalidated another statutory trademark restriction—one prohibiting the registration of “immoral” or “scandalous” marks—on similar grounds.¹⁵

Amdt1.7.5.9 False Statements Outside of Defamation

As defamatory false statements can lead to legal liability, false statements in other contexts can violate legal prohibitions. For instance, more than 100 federal criminal statutes punish false statements in areas of concern to federal courts or agencies,¹ and the Court has often noted the limited First Amendment value of such speech.² The Court, however, has rejected the idea that all false statements fall outside of First Amendment protection.

In United States v. Alvarez,³ the Court overturned the Stolen Valor Act of 2005,⁴ which imposed criminal penalties for falsely representing oneself to have been awarded a military decoration or medal. In an opinion by Justice Anthony Kennedy, four Justices distinguished false statement statutes that threaten the integrity of governmental processes or that further criminal activity, and evaluated the Act under a strict scrutiny standard.⁵ Noting that the Stolen Valor Act applied to false statements made “at any time, in any place, to any person,”⁶ Justice Anthony Kennedy suggested that upholding this law would leave the government with the power to punish any false discourse without a clear limiting principle. The plurality applied strict scrutiny to the Act as a content-based law. Justice Stephen Breyer, in a separate opinion joined by Justice Elena Kagan, concurred in judgment, but did so only after evaluating the prohibition under an intermediate scrutiny standard. While Justice Breyer was also concerned about the breadth of the Act, his opinion suggested that a statute more finely tailored to “a subset of lies where specific harm is likely to occur” could withstand legal challenge.⁷

Amdt1.7.5.10 Privacy Torts

Government power to protect the privacy interests of its citizens by penalizing publication or authorizing causes of action for publication directly implicates First Amendment rights. Privacy is a concept composed of several aspects.¹ As a tort concept, it embraces at least four branches of protected interests: protection from unreasonable intrusion upon one’s seclusion, from appropriation of one’s name or likeness, from unreasonable publicity given to one’s private life, and from publicity which unreasonably places one in a false light before the public.²

Although the Court has recognized valid governmental interests in extending protection to privacy,³ it has nevertheless interposed substantial free expression interests in the balance. The Court’s constitutional jurisprudence in this area has drawn heavily from its rulings in New York Times v. Sullivan and other defamation cases discussed in an earlier essay.⁴ Thus, in Time, Inc. v. Hill,⁵ the Times standard requiring proof of actual malice precluded recovery under a state privacy statute that permitted recovery for harm caused by exposure to public attention in any publication which contained factual inaccuracies, although not necessarily defamatory inaccuracies, in communications on matters of public interest. Given that this actual malice standard did not limit the recovery of compensatory damages for defamation by private persons, the question arose whether Hill applied to all “false-light” cases or only such cases involving public officials or public figures.⁶ More specifically, one defamation case left unresolved the issue “whether the State may ever define and protect an area of privacy free from unwanted publicity in the press.”⁷ In Cox Broadcasting Corp. v. Cohn, the Court declined to pass on the broad question, holding instead that the accurate publication of information obtained from public records is absolutely privileged.⁸ Thus, the state could not permit a civil recovery for invasion of privacy occasioned by the reporting of the name of a rape victim obtained from court records and from a proceeding in open court.⁹

Continuing to adhere to “limited principles that sweep no more broadly than the appropriate context of the instant case,” the Court invalidated an award of damages against a newspaper for printing the name of a sexual assault victim lawfully obtained from a sheriff ’s department press release.¹⁰ The state was unable to demonstrate that imposing liability served a “need” to further a state interest of the highest order, since the same interest could have been served by the more limited means of self regulation by the police, since the particular per se negligence statute precluded inquiry into the extent of privacy invasion (for example, inquiry into whether the victim’s identity was already widely known), and since the statute singled out “mass communications” media for liability rather than applying evenhandedly to anyone disclosing a victim’s identity.¹¹

The tort of intentional infliction of emotional distress has presented special concerns due to its “outrageousness” standard of liability. In Hustler Magazine, Inc. v. Falwell,¹² the Court applied the New York Times v. Sullivan standard to a public figure seeking damages for intentional infliction of emotional distress. The case involved an advertisement “parody” portraying the plaintiff, described by the Court as a “nationally known minister who has been active as a commentator on politics and public affairs,” as stating that he lost his virginity “during a drunken incestuous rendezvous with his mother in an outhouse.”¹³ Affirming liability in this case, the Court believed, would subject “political cartoonists and satirists . . . to damage awards without any showing that their work falsely defamed its subject.”¹⁴ The Court noted that “most if not all jurisdictions” had imposed liability for this tort only where the conduct was “outrageous.”¹⁵ However, the Court rejected the idea that this “outrageousness” standard could distinguish supposedly impermissible parodies from more traditional political cartoons, explaining that “‘[o]utrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views.”¹⁶ Therefore, proof of intent to cause injury, “the gravamen of the tort,” was insufficient “in the area of public debate about public figures.” Additional proof that the publication contained a false statement of fact made with actual malice was necessary, the Court concluded, in order “to give adequate ‘breathing space’ to the freedoms protected by the First Amendment.”¹⁷

The Court next considered whether an intentional infliction of emotional distress action could be brought by a father against public protestors who picketed the military funeral of his son, where the plaintiff was neither a public official nor a public figure. In Snyder v. Phelps,¹⁸ the Court avoided addressing whether the actual malice standard applied to the intentional infliction of emotional distress upon a private citizen, finding that where public protesters are addressing issues of public concern, the fact that such protests occurred in a setting likely to upset private individuals did not reduce the First Amendment protection of that speech. In Phelps, the congregation of the Westboro Baptist Church, based on the belief that God punishes the United States for its tolerance of homosexuality, particularly in America’s armed forces, had engaged in nearly 600 protests at funerals, mostly military. While it was admitted that the plaintiff had suffered emotional distress after a protest at his son’s funeral, the Court declined to characterize the protests as directed at the father personally.¹⁹ Rather, considering the “content, form, and context” of that speech,²⁰ the Court found that the dominant themes of the protest went to public concerns, and thus could not serve as the basis for a tort suit.²¹

The Court has further suggested that the actual malice standard does not apply to a right of publicity claim. In Zacchini v. Scripps-Howard Broadcasting Co.,²² the Court held unprotected by the First Amendment a broadcast of a video tape of the “entire act” of a “human cannonball” in the context of the performer’s suit for damages against the company for having “appropriated” his act, thereby injuring his right to the publicity value of his performance. The Court emphasized two differences between the legal action permitted here and the legal actions found unprotected or not fully protected in defamation and other privacy-type suits. First, the interest sought to be protected was, rather than a party’s right to his reputation and freedom from mental distress, the right of the performer to remuneration for putting on his act. Second, the other torts if permitted decreased the information that would be made available to the public, whereas permitting this tort action would have an impact only on “who gets to do the publishing.”²³ In both respects, the tort action was analogous to patent and copyright laws in that both provide an economic incentive to persons to make the investment required to produce a performance of interest to the public.²⁴

Amdt1.7.5.11 Obscenity

Although public discussion of political affairs is at the core of the First Amendment, the guarantees of speech and press are broader, extending also, for example, to sexually explicit entertainment. The Supreme Court has rejected the idea that the First Amendment “applies only to the exposition of ideas,” saying “[t]he line between the informing and the entertaining is too elusive for the protection of that basic right.”¹ The right to impart and to receive “information and ideas, regardless of their social worth . . . is fundamental to our free society.”² Accordingly, obscene material, referring to certain sexually explicit material,³ may be protected even if it is “arguably devoid of any ideological content.”⁴ Nonetheless, while sexually explicit material may be entitled to constitutional protection, the Court has said the subcategories of obscenity and child pornography—the latter discussed in a subsequent essay—can generally be regulated without triggering heightened scrutiny.⁵

Adjudication over the constitutional law of obscenity began in Roth v. United States,⁶ in which the Court ruled that obscenity is not “within the area of protected speech and press.”⁷ The Court undertook a brief historical survey to demonstrate that “the unconditional phrasing of the First Amendment was not intended to protect every utterance.”⁸ All or practically all the states that ratified the First Amendment had laws making blasphemy or profanity or both crimes, and provided for prosecutions of libels as well. This history was deemed to demonstrate that “obscenity, too, was outside the protection intended for speech and press.”⁹ The Court said that although “[a]ll ideas having even the slightest redeeming social importance” were entitled to First Amendment protections, “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”¹⁰ Because obscenity was not protected at all, tests such as clear and present danger, which the Court had previously applied to assess the constitutionality of other laws, were irrelevant.¹¹

The Court clarified, however, that, “sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, for example, in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press . . . . It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.”¹² The Court identified the relevant standard for unprotected obscenity as “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”¹³ The Court defined material appealing to prurient interest as “material having a tendency to excite lustful thoughts,” and defined prurient interest as “a shameful or morbid interest in nudity, sex, or excretion.”¹⁴

In the years after Roth, the Court considered many obscenity cases. The cases can be grouped topically, but, with the exception of those cases dealing with protection of children,¹⁵ unwilling adult recipients,¹⁶ and procedure,¹⁷ these cases are best explicated chronologically. In Manual Enterprises v. Day,¹⁸ the Court upset a Post Office ban upon mailing certain magazines addressed to homosexual audiences, but none of the Court’s opinions gained the support of the majority. Nor did a majority opinion emerge in Jacobellis v. Ohio, which reversed a conviction for exhibiting a motion picture.¹⁹ In Ginzburg v. United States,²⁰ the Court held that in “close” cases borderline materials could be determined to be obscene if the seller “pandered” them in a way that indicated he was catering to prurient interests. On the same day, the same five-Justice majority affirmed a state conviction under a law prohibiting distributing obscene books by applying the “pandering” test and concluding that courts could hold material to be legally obscene if it appealed to the prurient interests of the deviate group to which it was directed.²¹ On the same day, however, the Court held that Fanny Hill, a novel, which at that point was 277 years old, was not legally obscene.²² The Court’s prevailing opinion restated the Roth tests that, to be considered obscene, material must (1) have a dominant theme in the work considered as a whole that appeals to prurient interest, (2) be patently offensive because it goes beyond contemporary community standards, and (3) be utterly without redeeming social value.²³

After the divisions engendered by the disparate opinions in the three 1966 cases, the Court over the next several years submerged its differences by issuing per curiam dispositions in nearly three dozen cases in which it reversed convictions or civil determinations of obscenity in all but one. The initial case was Redrup v. New York,²⁴ in which, after noting that the cases involved did not present special questions requiring other treatment, such as concern for juveniles, protection of unwilling adult recipients, or proscription of pandering,²⁵ the Court succinctly summarized the varying positions of the seven Justices in the majority and said: “[w]hichever of the constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand . . . .”²⁶ Although the Court’s subsequent cases followed the pattern established in Redrup,²⁷ the Court’s changing membership led to speculation about the continuing vitality of Roth and the Court’s Redrup approach.²⁸

At the end of the October 1971 Term, the Court requested argument on whether the display of sexually oriented films or of sexually oriented pictorial magazines, when surrounded by notice to the public of their nature and by reasonable protection against exposure to juveniles, was constitutionally protected.²⁹ By a 5-4 vote during the October 1972 Term, the Court in Paris Adult Theatre I v. Slaton adhered to the Roth principle that the First and Fourteenth Amendments do not protect obscene material even if access is limited to consenting adults.³⁰ Writing for the Court, Chief Justice Warren Burger observed that the states have wider interests than protecting juveniles and unwilling adults from exposure to pornography; legitimate state interests, effectuated through the exercise of the police power, exist in protecting and improving the quality of life and the total community environment, in improving the tone of commerce in the cities, and in protecting public safety. Consequently, Chief Justice Warren reasoned, it does not matter that the states may be acting based on unverifiable assumptions in deciding to suppress the trade in pornography because the Constitution does not require, in the context of the trade in ideas, that governmental courses of action be subject to empirical verification any more than it does in other fields. Chief Justice Warren further noted that the Constitution does not embody any concept of laissez-faire, or of privacy, or of “free will,” that curbs governmental efforts to suppress pornography.³¹

In Miller v. California,³² the Court prescribed the currently prevailing standard by which courts identify unprotected pornographic materials. Because of the inherent dangers in regulating any form of expression, the Court noted, laws to regulate pornography must be carefully limited and their scope confined to materials that “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.”³³ The Court further reasoned that law “must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.”³⁴ The Court disavowed and discarded the standard that a work must be “utterly without redeeming social value” to be suppressed.³⁵ In determining whether material appeals to a prurient interest or is patently offensive, the trier-of-fact, whether a judge or a jury, is not bound by a hypothetical national standard but may apply the trier-of-fact’s local community standard.³⁶ Prurient interest and patent offensiveness, the Court indicated, “are essentially questions of fact.”³⁷ By contrast, the prong of the Miller test that looked at the material’s “value” is not subject to a community standards test; instead, the appropriate standard is “whether a reasonable person would find [literary, artistic, political, or scientific] value in the material, taken as a whole.”³⁸

The Court in Miller reiterated that it was not permitting an unlimited degree of suppression of materials. Only “hard core” materials were to be deemed without the protection of the First Amendment, and the Court’s idea of the content of “hard core” pornography was revealed in “a few plain examples of what a state” could regulate: “(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.”³⁹ Subsequently, the Court held that a publication was not obscene if it “provoked only normal, healthy sexual desires.”⁴⁰ To be obscene it must appeal to “a shameful or morbid interest in nudity, sex, or excretion.”⁴¹ The Court has also indicated that obscenity is not be limited to pictures; books containing only descriptive language may be suppressed.⁴²

First Amendment values, the Court stressed in Miller, “are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.”⁴³ While the Court had said juries as triers-of-fact should determine, based on their understanding of community standards, whether material was “patently offensive,” it was less clear how appeals courts could appropriately review these jury determinations. In Jenkins v. Georgia,⁴⁴ the Court, while adhering to the Miller standards, stated that “juries [do not] have unbridled discretion in determining what is ‘patently offensive.’” Miller was intended to make clear that only “hard-core” materials could be suppressed and this concept and the Court’s descriptive itemization of some types of hardcore materials were “intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination.”⁴⁵ Viewing the motion picture in question convinced the Court that “[n]othing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the ‘patently offensive’ element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment.”⁴⁶ But, in a companion case, the Court found that a jury determination of obscenity “was supported by the evidence and consistent with” the standards.⁴⁷

While the Court’s decisions from the Paris Adult Theatre and Miller era were rendered by narrow majorities,⁴⁸ they have since guided the Court. For example, the Court struck down federal regulations aimed at preventing the transmission of indecent materials over the telephone and internet, where those statutes did not adhere to the Miller standard.⁴⁹ Even as to materials falling within the constitutional definition of obscene, the Court has recognized a limited private, protected interest in possession within the home,⁵⁰ unless those materials constitute child pornography. In Stanley v. Georgia, the appellant appealed his state conviction for possessing obscene films that police officers discovered in his home pursuant to a search warrant for other items which the police did not find. The Court reversed, holding that mere private possession of obscene materials in the home cannot be a criminal offense. The Constitution protects the right to receive information and ideas, the Court said, regardless of their social value, and “that right takes on an added dimension” in the context of a prosecution for possession of something in one’s own home. The Court stated: “For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.”⁵¹ Despite the Court’s unqualified assertion in Roth that the First Amendment did not protect obscenity, the Court remained concerned with the government interest in regulating commercial distribution of obscene materials. Though the Stanley Court said its decision did not impair Roth and cases relying on that decision,⁵² by rejecting each state contention in support of a conviction, the Court appeared to reject much of Roth’s basis. In Stanley, the Court made the following points: (1) there is no government interest in protecting an individual’s mind from the effect of obscenity; (2) the absence of ideological content in films is irrelevant, since the Court would not distinguish transmission of ideas and entertainment; (3) no empirical evidence supported a contention that exposure to obscene materials may incite a person to antisocial conduct and, even if such evidence existed, government may address this by enforcing laws proscribing the offensive conduct; (4) it is not necessary to punish mere possession in order to punish distribution; and (5) private possession was unlikely to contribute to the problems prompting laws barring public dissemination of obscene materials or exposing children and unwilling adults to such materials.⁵³

The Court has confined Stanley’s holding to its facts and has also dispelled any suggestion that Stanley applies outside the home or recognizes a right to obtain or supply pornography.⁵⁴ For instance, the Court has held Stanley does not apply to possessing child pornography in the home because the state interest in protecting children from sexual exploitation far exceeds the interest in Stanley of protecting adults from themselves.⁵⁵

Amdt1.7.5.12 Child Pornography

In New York v. Ferber,¹ the Court recognized another category of expression that is outside the coverage of the First Amendment: the visual depiction of children in films or still photographs in a variety of sexual activities or exposures of the genitals. The reason that such depictions may be prohibited was the governmental interest in protecting the physical and psychological well-being of children, whose participation in the production of these materials would subject them to exploitation and harm. The state may go beyond a mere prohibition of the use of children, because it is not possible to protect children adequately without prohibiting the exhibition and dissemination of the materials and advertising about them. Thus, the Court held that “the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required.”² But, because expression is involved, the government must carefully define what conduct is to be prohibited and may reach only “works that visually depict sexual conduct by children below a specified age.”³

The Court has considered cases addressing the private possession of child pornography in the home. In Osborne v. Ohio⁴ the Court upheld a state law criminalizing possessing or viewing of child pornography as applied to someone who possessed such materials in his home. Distinguishing a prior case protecting the personal possession of obscene material, the Court ruled that Ohio’s interest in preventing exploitation of children far exceeded what it characterized as Georgia’s “paternalistic interest” in protecting the minds of adult viewers of obscene material.⁵ Because the state’s interest in regulating child pornography was of greater importance, the Court saw less need to require states to demonstrate a strong necessity for regulating private possession in addition to the commercial distribution and sale.

In Ashcroft v. Free Speech Coalition, the Court held unconstitutional the federal Child Pornography Prevention Act (CPPA) to the extent that it prohibited pictures that were not produced with actual minors.⁶ The law prohibited computer-generated (“virtual”) child pornography, and photographs of adult actors who appeared to be minors, and could have extended to “a Renaissance painting depicting a scene from classical mythology.”⁷ The Court observed that statutes prohibiting child pornography that uses real children are constitutional because they target “[t]he production of the work, not the content.”⁸ The CPPA, by contrast, targeted the content, not the means of production. The government’s rationales for the CPPA included that “[p]edophiles might use the materials to encourage children to participate in sexual activity” and might “whet their own sexual appetites” with it, “thereby increasing . . . the sexual abuse and exploitation of actual children.”⁹ The Court found these rationales inadequate because the government “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts” and “may not prohibit speech because it increases the chance an unlawful act will be committed ‘at some indefinite future time.’”¹⁰ The government had also argued that the existence of “virtual” child pornography “can make it harder to prosecute pornographers who do use real minors,” because, “[a]s imaging technology improves . . . , it becomes more difficult to prove that a particular picture was produced using actual children.”¹¹ This rationale, the Court found, “turns the First Amendment upside down. The Government may not suppress lawful speech as a means to suppress unlawful speech.”¹²

In United States v. Williams,¹³ the Supreme Court upheld a federal statute that prohibits knowingly advertising, promoting, presenting, distributing, or soliciting material “in a manner that reflects the belief, or that is intended to cause another to believe, that the material” is child pornography that is obscene or that depicts an actual minor (that is, is child pornography that is not constitutionally protected).¹⁴ Under the provision, in other words, “an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute.”¹⁵ The Court found that these activities are not constitutionally protected because “[o]ffers to engage in illegal transactions [as opposed to abstract advocacy of illegality] are categorically excluded from First Amendment protection,” even “when the offeror is mistaken about the factual predicate of his offer,” such as when the child pornography that one offers to buy or sell does not exist or is constitutionally protected.¹⁶

However, the principles applying to child pornography do not extend to protecting children from encountering sexually explicit material. Although the government has a “compelling” interest in protecting children from seeing or hearing indecent material, total bans applicable to adults and children alike are constitutionally suspect.¹⁷ In Reno v. American Civil Liberties Union,¹⁸ the Court struck down two provisions of the Communications Decency Act of 1996 (CDA), one of which would have prohibited use of an “interactive computer service” to display indecent material “in a manner available to a person under 18 years of age.”¹⁹ This prohibition would, in effect, have banned indecent material from all internet sites except those accessible only by adults. Although intended “to deny minors access to potentially harmful speech . . . , [the CDA’s] burden on adult speech,” the Court wrote, “is unacceptable if less restrictive alternatives would be at least as effective. . . . [T]he Government may not ‘reduc[e] the adult population . . . to . . . only what is fit for children.’”²⁰

In Reno, the Court distinguished FCC v. Pacifica Foundation,²¹ in which it had upheld the Federal Communications Commission’s (FCC) restrictions on indecent radio and television broadcasts, because (1) “[t]he CDA’s broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet,” (2) the CDA imposes criminal penalties, and the Court has never decided whether indecent broadcasts “would justify a criminal prosecution,” and (3) broadcast radio and television, unlike the internet, have, “as a matter of history . . . ‘received the most limited First Amendment protection,’ . . . in large part because warnings could not adequately protect the listener from unexpected program content.”²² By contrast, on the internet, at least as it existed in 1997, the Court believed “the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.”²³

After the Supreme Court struck down the CDA, Congress enacted the Child Online Protection Act (COPA), which banned “material that is harmful to minors” on websites that have the objective of earning a profit.²⁴ In ACLU v. Reno, the Third Circuit upheld a preliminary injunction against enforcement of the statute on the ground that, “because the standard by which COPA gauges whether material is ‘harmful to minors’ is based on identifying ‘contemporary community standards[,]’ the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech.”²⁵ The Third Circuit reasoned that COPA would have resulted in communications available to a nationwide audience being judged by the standards of the community most likely to be offended. In Ashcroft v. ACLU, the Supreme Court vacated and remanded the Third Circuit decision, holding “that COPA’s reliance on community standards to identify ‘material that is harmful to minors’ does not by itself render the statute substantially overbroad for purposes of the First Amendment.”²⁶

Upon remand, the Third Circuit again upheld the preliminary injunction, and the Supreme Court affirmed and remanded the case for trial. The Supreme Court found that the district court had not abused its discretion in granting the preliminary injunction, because the government had failed to show that proposed alternatives to COPA would not be as effective in accomplishing its goal. The primary alternative to COPA, the Court noted, is blocking and filtering software. Filters are less restrictive than COPA because “[t]hey impose selective restrictions on speech at the receiving end, not universal restriction at the source.”²⁷ Subsequently, the district court found COPA to violate the First Amendment and issued a permanent injunction against its enforcement; the Third Circuit affirmed, and the Supreme Court denied certiorari.²⁸

In United States v. American Library Association, Inc., a four-Justice plurality of the Supreme Court upheld the Children’s Internet Protection Act (CIPA), which, as the plurality summarized it, provides that a public school or “library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them.”²⁹ The plurality asked “whether libraries would violate the First Amendment by employing the filtering software that CIPA requires”³⁰—in other words, whether CIPA would effectively violate library patrons’ rights. The plurality concluded that it did not, after finding that “Internet access in public libraries is neither a ‘traditional’ nor a ‘designated’ public forum,” and that it therefore would not be appropriate to apply strict scrutiny to determine whether the filtering requirements are constitutional.³¹ The plurality acknowledged “the tendency of filtering software to ‘overblock’—that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block.”³² It found, however, that, “[a]ssuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled.”³³

The plurality also considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance—in other words, whether the government can require public libraries to limit their speech if they accept federal funds. The plurality found that, assuming that government entities have First Amendment rights (it did not decide the question), “CIPA does not ‘penalize’ libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress’s decision not to subsidize their doing so.”³⁴