Government Restraint of Content of Expression

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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As a general matter, government may not regulate speech “because of its message, its ideas, its subject matter, or its content.”¹¹⁸⁷ “It is rare that a regulation restricting speech because of its content will ever be permissible.”¹¹⁸⁸ The constitutionality of content-based regulation is determined by a compelling interest test derived from equal protection analysis: the government “must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.”¹¹⁸⁹ Narrow tailoring in the case of fully protected speech requires that the government “choose[ ] the least restrictive means to further the articulated interest.”¹¹⁹⁰ Application of this test ordinarily results in invalidation of the regulation.¹¹⁹¹

The Court has recognized two central ways in which a law can impose content-based restrictions, which include not only restrictions on particular viewpoints, but also prohibitions on public discussions of an entire topic.¹¹⁹² First, a government regulation of speech is content-based if the regulation on its face draws distinctions based on the message a speaker conveys.¹¹⁹³ For example, in Boos v. Barry, the Court held that a Washington D. C. ordinance prohibiting the display of signs near any foreign embassy that brought a foreign government into “public odiom” or “public disrepute” drew a content-based distinction on its face.¹¹⁹⁴ Second, the Court has recognized that facially content-neutral laws can be considered content-based regulations of speech if a law cannot be “justified without reference to the content of speech” or was adopted “because of disagreement with the message [the speech] conveys.”¹¹⁹⁵ As a result, in an example provided in Sorrell v. IMS Health, the Court noted that if a government “bent on frustrating an impending demonstration” passed a law demanding two years’ notice before the issuance of parade permits, such a law, while facially content-neutral, would be content-based because its purpose was to suppress speech on a particular topic.¹¹⁹⁶

Importantly, for a law that falls within the first category of recognized content-based regulations—those laws that are content-based on their face—the government’s justifications or purposes for enacting that law are irrelevant to determine whether the law is subject to strict scrutiny.¹¹⁹⁷ Put another way, for laws that facially draw distinctions based on the subject matter of the underlying speech, there is no need for a court to look into the purpose of the underlying law being challenged under the First Amendment; instead, that law is automatically subject to strict scrutiny.¹¹⁹⁸ As such, in Reed v. Town of Gilbert, the Court, in invalidating provisions of a municipality’s sign code that imposed more stringent restrictions on signs directing the public to an event than on signs conveying political or ideological messages, determined the sign code to be content-based and subject to strict scrutiny, notwithstanding the town’s “benign,” non-speech related motives for enacting the code.¹¹⁹⁹ In so holding, the Court reasoned that the First Amendment, by targeting the “abridgement of speech,” is centrally concerned with the operations of laws and not the motivations of those who enacted the laws.¹²⁰⁰ In this vein, the Court concluded that the “vice” of content-based legislation is not that it will “always” be used for invidious purposes, but rather that content-based restrictions necessarily lend themselves to such purposes.¹²⁰¹

Nonetheless, as discussed below, the Supreme Court has recognized that the First Amendment permits restrictions upon the content of speech in a “few limited areas,” including obscenity, defamation, fraud, incitement, fighting words, and speech integral to criminal conduct.¹²⁰² This “two-tier” approach 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.¹²⁰³ As the Court has generally applied Chaplinsky over the past several decades, if speech fell within one of the “well-defined and narrowly limited” categories, it was unprotected, regardless of its effect. If it did not, it was covered by the First Amendment, and the speech was protected unless the restraint was justified by some test relating to harm, such as the clear and present danger test or the more modern approach of balancing the presumptively protected expression against a compelling governmental interest. In more recent decades, the cases reflect a fairly consistent and sustained movement by the Court toward eliminating or severely narrowing the “two-tier” doctrine. As a result, expression that before would have been held absolutely unprotected (e. g. , seditious speech and seditious libel, fighting words, defamation, and obscenity) received protection. While the movement was temporarily deflected by a shift in position with respect to obscenity and by the recognition of a new category of non-obscene child pornography,¹²⁰⁴ the most recent decisions of the Court reflect a reluctance to add any new categories of excepted speech and to interpret narrowly the excepted categories of speech that have long-established roots in First Amendment law.¹²⁰⁵

Even if a category of speech is unprotected by the First Amendment, regulation of that speech on the basis of viewpoint may be impermissible. In R. A. V. v. City of St. Paul,¹²⁰⁶ the Court struck down a hate crimes ordinance that the state courts had construed to apply only to the use of “fighting words.” The difficulty, the Court found, was that the ordinance discriminated further, proscribing only those fighting words that “arouse[ ] anger, alarm or resentment in others . . . on the basis of race, color, creed, religion or gender.”¹²⁰⁷ This amounted to “special prohibitions on those speakers who express views on disfavored subjects.”¹²⁰⁸ The fact that the government may proscribe areas of speech such as obscenity, defamation, or fighting words does not mean that these areas “may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.”¹²⁰⁹

Seditious Speech and Seditious Libel.—Opposition to government through speech alone has been subject to punishment throughout much of history under laws proscribing “seditious” utterances. In this country, the Sedition Act of 1798 made criminal, inter alia, malicious writings that defamed, brought into contempt or disrepute, or excited the hatred of the people against the government, the President, or the Congress, or that stirred people to sedition.¹²¹⁰ In New York Times Co. v. Sullivan,¹²¹¹ the Court surveyed the controversy surrounding the enactment and enforcement of the Sedition Act and concluded that debate “first crystallized a national awareness of the central meaning of the First Amendment. . . . Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history . . . . [That history] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.” The “central meaning” discerned by the Court, quoting Madison’s comment that in a republican government “the censorial power is in the people over the Government, and not in the Government over the people,” is that “[t]he right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.”

Little opportunity to apply this concept of the “central meaning” of the First Amendment in the context of sedition and criminal syndicalism laws has been presented to the Court. In Dombrowski v. Pfister¹²¹² the Court, after expanding on First Amendment considerations the discretion of federal courts to enjoin state court proceedings, struck down as vague and as lacking due process procedural protections certain features of a state “Subversive Activities and Communist Control Law.” In Brandenburg v. Ohio,¹²¹³ a state criminal syndicalism statute was held unconstitutional because its condemnation of advocacy of crime, violence, or unlawful methods of terrorism swept within its terms both mere advocacy as well as incitement to imminent lawless action. A seizure of books, pamphlets, and other documents under a search warrant pursuant to a state subversives suppression law was struck down under the Fourth Amendment in an opinion heavy with First Amendment overtones.¹²¹⁴

Fighting Words and Other Threats to the Peace.—In Chaplinsky v. New Hampshire,¹²¹⁵ the Court unanimously sustained a conviction under a statute proscribing “any offensive, derisive or annoying word” addressed to any person in a public place under the state court’s interpretation of the statute as being limited to “fighting words”—i. e., to words that “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” The statute was sustained 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.”¹²¹⁶ The case is best known for Justice Murphy’s famous dictum. “[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that 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.”¹²¹⁷

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.”¹²¹⁸ 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 formally alive but of little vitality.¹²¹⁹

On the obverse side, the “hostile audience” situation, the Court once 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.¹²²⁰ But this case has been significantly limited by cases that hold protected 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 breach of the peace and disorderly conduct statutes may not be used to curb such expression.

The cases are not clear as to what extent the police must go in protecting the speaker against hostile audience reaction or whether only actual disorder or a clear and present danger of disorder will entitle the authorities to terminate the speech or other expressive conduct.¹²²¹ Nor, in the absence of incitement to illegal action, may government punish mere expression or proscribe ideas,¹²²² regardless of the trifling or annoying caliber of the expression.¹²²³

Threats of Violence Against Individuals.—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.”¹²²⁴ In Watts v. United States, however, the Court held that only “true” threats are outside the First Amendment.¹²²⁵ The defendant in Watts, at a public rally at which he was expressing his opposition to the military draft, said, “If they ever make me carry a rifle, the first man I want to get in my sights is L. B. J.”¹²²⁶ 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,”¹²²⁷ it found that the defendant had not made a “true ‘threat,’” but had indulged in mere “political hyperbole.”¹²²⁸

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.¹²²⁹ During the course of the boycott, NAACP Field Secretary Charles Evers had told an audience of “black people that any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.”¹²³⁰ 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 . . . .”¹²³¹ 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.”¹²³² Although it held that, under Brandenburg, Evers’ speech did not constitute unprotected incitement of lawless action,¹²³³ the Court also cited Watts, thereby implying that Evers’ speech also did not constitute a “true threat.”¹²³⁴

In Planned Parenthood v. American Coalition of Life Activists, the en banc Ninth Circuit, by a 6-to-5 vote, upheld a damage award in favor of four physicians and two health clinics that provided medical services, including abortions, to women.¹²³⁵ The plaintiffs had sued under a federal statute that gives aggrieved persons a right of action against whoever by “threat of force . . . intentionally . . . intimidates any person because the person is or has been . . . providing reproductive health services.” The defendants had published “WANTED,” “unWANTED,” and “GUILTY” posters with the names, photographs, addresses, and other personal information about abortion doctors, three of whom were subsequently murdered by abortion opponents. The defendants also operated a “Nuremberg Files” website that listed approximately 200 people under the label “ABORTIONIST,” with the legend: “Black font (working); Greyed-out Name (wounded); Strikethrough (fatality).”¹²³⁶ The posters and the website contained no language that literally constituted a threat, but, the court found, “they connote something they do not literally say,” namely “You’re Wanted or You’re Guilty; You’ll be shot or killed,”¹²³⁷ and the defendants knew that the posters caused abortion doctors to “quit out of fear for their lives.”¹²³⁸

The Ninth Circuit concluded that a “true threat” is “a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person.”¹²³⁹ “It is not necessary that the defendant intend to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat.”¹²⁴⁰

Judge Alex Kozinski, in one of three dissenting opinions, agreed with the majority’s definition of a true threat, but believed that the majority had failed to apply it, because the speech in this case had not been “communicated as a serious expression of intent to inflict bodily harm. . . .”¹²⁴¹ “The difference between a true threat and protected expression,” Judge Kozinski wrote, “is this: A true threat warns of violence or other harm that the speaker controls. . . . Yet the opinion points to no evidence that defendants who prepared the posters would have been understood by a reasonable listener as saying that they will cause the harm. . . . Given this lack of evidence, the posters can be viewed, at most, as a call to arms for other abortion protesters to harm plaintiffs. However, the Supreme Court made it clear that under Brandenburg, encouragement or even advocacy of violence is protected by the First Amendment. . . .”¹²⁴² Moreover, the Court held in Claiborne that “[t]he mere fact the statements could be understood ‘as intending to create a fear of violence’ was insufficient to make them ‘true threats’ under Watts.”¹²⁴³

Group Libel, Hate Speech.—In Beauharnais v. Illinois,¹²⁴⁴ relying on dicta in past cases,¹²⁴⁵ 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 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.”¹²⁴⁶ The Justice then reviewed the history of racial strife in Illinois to conclude that the legislature could reasonably have feared substantial evils from unrestrained racial utterances. Nor did the Constitution require the state 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.¹²⁴⁷ “Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary . . . to consider the issues behind the phrase ‘clear and present danger.’”¹²⁴⁸

Beauharnais has little continuing vitality as precedent. Its holding, premised in part on the categorical exclusion of defamatory statements from First Amendment protection, has been substantially undercut by subsequent developments, not the least of which are the Court’s subjection of defamation law to First Amendment challenge and its ringing endorsement of “uninhibited, robust, and wide-open” debate on public issues in New York Times Co. v. Sullivan.¹²⁴⁹ In R. A. V. v. City of St. Paul, the Court, in an opinion by Justice 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.”¹²⁵⁰ Content discrimination unrelated to that “distinctively proscribable content,” however, runs afoul of the First Amendment.¹²⁵¹ 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. “The First Amendment does not permit [the city] to impose special prohibitions on those speakers who express views on disfavored subjects.”¹²⁵²

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.¹²⁵³ Such a prohibition does not discriminate on the basis of a defendant’s beliefs: “as a factual matter it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities. . . . The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages. . . .”¹²⁵⁴

Legislation intended to prevent offense of individuals and groups of people has also been struck down as unconstitutional. For example, in Matal v. Tam, the Supreme Court considered a federal law prohibiting the registration of trademarks that “may disparage . . . or bring . . . into contempt[ ] or disrepute” any “persons, living or dead.”¹²⁵⁵ 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.¹²⁵⁶ The Court held that the disparagement provision violates 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.”¹²⁵⁷

Defamation.—One of the most seminal shifts in constitutional jurisprudence occurred in 1964 with the Court’s decision in New York Times Co. v. Sullivan.¹²⁵⁸ 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 foreclosed by the “label” attached to something. “Like . . . the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.”¹²⁵⁹ “The general proposition,” the Court continued, “that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions . . . . [W]e consider this 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.”¹²⁶⁰ 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.”¹²⁶¹

Erroneous statement is protected, the Court asserted, there being no exception “for any test of truth.” Error is inevitable in any free debate and to place liability upon that score, and especially to place on the speaker the burden of proving truth, would introduce self-censorship and stifle the free expression which the First Amendment protects.¹²⁶² 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.”¹²⁶³ That neither factual error nor defamatory content could penetrate the protective circle of the First Amendment was the “lesson” to be drawn from the great debate over the Sedition Act of 1798, which the Court reviewed in some detail to discern the “central meaning of the First Amendment.”¹²⁶⁴ Thus, it appears, the libel law under consideration failed the test of constitutionality because of its kinship with seditious libel, which violated the “central meaning of the First Amendment.” “The constitutional guarantees require, we think, a federal rule that 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.”¹²⁶⁵

In the wake of the Times ruling, the Court decided two cases involving the type of criminal libel statute upon which Justice Frankfurter had relied in analogy to uphold the group libel law in Beauharnais.¹²⁶⁶ In neither case did the Court apply the concept of Times to void them altogether. Garrison v. Louisiana¹²⁶⁷ held that a statute that did not incorporate the Times rule of “actual malice” was invalid, while in Ashton v. Kentucky¹²⁶⁸ 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.

The teaching of Times and the cases following it is that expression on matters of public interest is protected by the First Amendment. Within that area of protection is commentary about the public actions of individuals. The fact that expression contains falsehoods does not deprive it of protection, because otherwise such expression in the public interest would be deterred by monetary judgments and self-censorship imposed for fear of judgments. But, over the years, the Court has developed an increasingly complex set of standards governing who is protected to what degree with respect to which matters of public and private interest.

Individuals to whom the Times rule applies presented one of the first issues for determination. At times, the Court has keyed it to the importance of the position held. “There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the ‘public official’ designation applies 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.”¹²⁶⁹ But this focus seems to have become diffused and the concept of “public official” has appeared to take on overtones of anyone holding public elective or appointive office.¹²⁷⁰ 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.¹²⁷¹

Thus, a wide range of reporting about both public officials and candidates is protected. Certainly, the conduct of official duties by public officials is subject to the widest scrutiny and criticism.¹²⁷² But the Court has held as well that criticism that reflects generally upon an official’s integrity and honesty is protected.¹²⁷³ 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.¹²⁷⁴

For a time, the Court’s decisional process threatened to expand the Times privilege so as to obliterate the distinction between private and public figures. First, the Court created a subcategory of “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 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.”¹²⁷⁵ Later, the Court curtailed the definition of “public figure” by playing down the matter of public interest and emphasizing the voluntariness of the assumption of a role in public affairs that will make of one a “public figure.”¹²⁷⁶

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.¹²⁷⁷ But, in Gertz v. Robert Welch, Inc.¹²⁷⁸ the Court set off on a new path of limiting recovery for defamation by private persons. Henceforth, 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.”

The Court’s opinion by Justice Powell established competing constitutional considerations. On the one hand, imposition upon the press of liability for every misstatement would deter not only false speech but much truth as well; the possibility that the press might have to prove everything it prints would lead to self-censorship and the consequent deprivation of the public of access to information. On the other hand, there is a legitimate state interest in compensating individuals for the harm inflicted on them by defamatory falsehoods. An individual’s right to the protection of his own good name is, at bottom, but a reflection of our society’s concept of the worth of the individual. Therefore, an accommodation must be reached. The Times rule had been a proper accommodation when public officials or public figures were concerned, inasmuch as by their own efforts they had brought themselves into the public eye, had created a need in the public for information about them, and had at the same time attained an ability to counter defamatory falsehoods published about them. Private individuals are not in the same position and need greater protection. “We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.”¹²⁷⁹ Thus, some degree of fault must be shown.

Generally, juries may award substantial damages in tort for presumed injury to reputation merely upon a showing of publication. But this discretion of juries had the potential to inhibit the exercise of freedom of the press, and moreover permitted juries to penalize unpopular opinion through the awarding of damages. Therefore, defamation plaintiffs who do not prove actual malice—that is, knowledge of falsity or reckless disregard for the truth—will be limited to compensation for actual provable injuries, such as outofpocket loss, impairment of reputation and standing, personal humiliation, and mental anguish and suffering. A plaintiff who proves actual malice will be entitled as well to collect punitive damages.¹²⁸⁰

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,¹²⁸¹ 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.¹²⁸² Also not a public figure for purposes of allegedly defamatory comment about the value of his research was a scientist who sought and received federal grants for research, the results of which were published in scientific journals.¹²⁸³ 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.¹²⁸⁴

Commentary about matters of “public interest” when it defames someone is apparently, after Firestone¹²⁸⁵ and Gertz, to be protected to the degree that the person defamed is a public official or candidate for public office, public figure, or private figure. That there is a controversy, that there are matters that may be of “public interest,” is insufficient to make a private person a “public figure” for purposes of the standard of protection in defamation actions.

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—the Gertz situation, in other words—the burden is on the plaintiff to establish the falsity of the information. Thus, the Court held in Philadelphia Newspapers v. Hepps,¹²⁸⁶ 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 pointed out, that a Gertz plaintiff must establish falsity in addition to establishing some degree of fault (e. g., negligence).¹²⁸⁷ 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 the sale of credit reporting information to subscribers is not such a matter of public concern.¹²⁸⁸ What significance, if any, is to be attributed to the fact that a media defendant rather than a private defendant has been sued is left unclear. 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.¹²⁸⁹ In Philadelphia Newspapers, however, the Court expressly reserved the issue of “what standards would apply if the plaintiff sues a nonmedia defendant.”¹²⁹⁰

Other issues besides who is covered by the Times privilege are of considerable importance. The use of the expression “actual malice” has been confusing in many respects, because it is in fact a concept distinct from the common law meaning of malice or the meanings common understanding might give to it.¹²⁹¹ Constitutional “actual malice” means that the defamation was published with knowledge that it was false or with reckless disregard of whether it was false.¹²⁹² Reckless disregard is not simply negligent behavior, but publication with serious doubts as to the truth of what is uttered.¹²⁹³ subject has the burden of proving by “clear and convincing” evidence, not merely by the preponderance of evidence standard ordinarily borne in civil cases, that the defendant acted with knowledge of falsity or with reckless disregard.¹²⁹⁴ Moreover, the Court has held, a Gertz plaintiff has the burden of proving the actual falsity of the defamatory publication.¹²⁹⁵ A plaintiff suing the press¹²⁹⁶ for defamation subject prove his case without resort to discovery of the defendant’s editorial processes in the establishment of “actual malice.”¹²⁹⁷ The state of mind of the defendant may be inquired into and the thoughts, opinions, and conclusions with respect to the material gathered and its review and handling are proper subjects of discovery. 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.¹²⁹⁸

There had been some indications that statements of opinion, unlike assertions of fact, are absolutely protected,¹²⁹⁹ but the Court held in Milkovich v. Lorain Journal Co.¹³⁰⁰ that there is no constitutional distinction between fact and opinion, hence no “wholesale defamation exemption” for any statement that can be labeled “opinion.”¹³⁰¹ The issue instead is whether, regardless of the context in which a statement is uttered, it 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,”¹³⁰² 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.”¹³⁰³

Substantial meaning is also the key to determining whether inexact quotations are defamatory. Journalistic conventions allow some alterations to correct grammar and syntax, but the Court in Masson v. New Yorker Magazine¹³⁰⁴ refused to draw a distinction on that narrow basis. Instead, “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.”¹³⁰⁵

False Statements.—As defamatory false statements can lead to legal liability, so can false statements in other contexts run afoul of legal prohibitions. For instance, more than 100 federal criminal statutes punish false statements in areas of concern to federal courts or agencies,¹³⁰⁶ and the Court has often noted the limited First Amendment value of such speech.¹³⁰⁷ The Court, however, has declined to find that all false statements fall outside of First Amendment protection. In United States v. Alvarez,¹³⁰⁸ the Court overturned the Stolen Valor Act of 2005,¹³⁰⁹ which imposed criminal penalties for falsely representing oneself to have been awarded a military decoration or medal. In an opinion by Justice 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.¹³¹⁰

Noting that the Stolen Valor Act applied to false statements made “at any time, in any place, to any person,”¹³¹¹ Justice Kennedy suggested that upholding this law would leave the government with the power to punish any false discourse without a clear limiting principle. Justice Breyer, in a separate opinion joined by Justice 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 went on to suggest that a similar statute, more finely tailored to situations where a specific harm is likely to occur, could withstand legal challenge.¹³¹²

Invasion of Privacy.—Governmental power to protect the privacy interests of its citizens by penalizing publication or authorizing causes of action for publication implicates directly First Amendment rights. Privacy is a concept composed of several aspects.¹³¹³ 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.¹³¹⁴

Although the Court has variously recognized valid governmental interests in extending protection to privacy,¹³¹⁵ it has nevertheless interposed substantial free expression interests in the balance. Thus, in Time, Inc. v. Hill,¹³¹⁶ the Times privilege was held to preclude 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. Since Gertz held that the Times privilege did not limit the recovery of compensatory damages for defamation by private persons, the question arose whether Hill applies to all “false-light” cases or only such cases involving public officials or public figures.¹³¹⁷ And, more important, Gertz left unresolved the issue “whether the State may ever define and protect an area of privacy free from unwanted publicity in the press.”¹³¹⁸

In Cox Broadcasting, the Court declined to pass on the broad question, holding instead that the accurate publication of information obtained from public records is absolutely privileged. 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.¹³¹⁹ Nevertheless, the Court in appearing to retreat from what had seemed to be settled principle, that truth is a constitutionally required defense in any defamation action, whether plaintiff be a public official, public figure, or private individual, may have preserved for itself the discretion to recognize a constitutionally permissible tort of invasion of privacy through publication of truthful information.¹³²⁰ But in recognition of the conflicting interests—in expression and in privacy—it is evident that the judicial process in this area will be cautious.

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. 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 (e. g., 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.¹³²¹

Emotional Distress Tort Actions.—In Hustler Magazine, Inc. v. Falwell,¹³²² the Court applied the New York Times v. Sullivan standard to recovery of damages by public officials and public figures for the tort of 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.”¹³²³ 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.”¹³²⁴ A proffered “outrageousness” standard for distinguishing such parodies from more traditional political cartoons was rejected; although not doubting that “the caricature of respondent . . . is at best a distant cousin of [some] political cartoons . . . and a rather poor relation at that,” the Court explained 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. . . .”¹³²⁵ Therefore, proof of intent to cause injury, “the gravamen of the tort,” is 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.”¹³²⁶

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. Based on the reasoning of Hustler Magazine, one might presume that the Times privilege would not extend to the intentional infliction of emotional distress upon a private citizen. However, in Snyder v. Phelps,¹³²⁷ the Court avoided addressing this issue, 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.¹³²⁸ Rather, considering the “content, form, and context” of that speech,¹³²⁹ 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.¹³³⁰

“Right of Publicity” Tort Actions.—In Zacchini v. Scripps-Howard Broadcasting Co.,¹³³¹ 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.”¹³³² 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.¹³³³

Publication of Legally Confidential Information.— Although a state may have valid interests in assuring the confidentiality of certain information, it may not enforce this confidentiality by criminally prosecuting nonparticipant third parties, including the press, who disclose or publish the information.¹³³⁴ The case that made this point arose in the context of the investigation of a state judge by an official disciplinary body; both by state constitutional provision and by statute, the body’s proceedings were required to be confidential and the statute made the divulging of information about the proceeding a misdemeanor. For publishing an accurate report about an investigation of a sitting judge, the newspaper was indicted and convicted of violating the statute, which the state courts construed to apply to nonparticipants. Although the Court recognized the importance of confidentiality to the effectiveness of such a proceeding, it held that the publication here “lies near the core of the First Amendment” because the free discussion of public affairs, including the operation of the judicial system, is primary and the state’s interests were simply insufficient to justify the encroachment on freedom of speech and of the press.¹³³⁵ The scope of the privilege thus conferred by this decision on the press and on individuals is, however, somewhat unclear, because the Court appeared to reserve consideration of broader questions than those presented by the facts of the case.¹³³⁶ It does appear, however, that government would find it difficult to punish the publication of almost any information by a nonparticipant to the process in which the information was developed to the same degree as it would be foreclosed from obtaining prior restraint of such publication.¹³³⁷ There are also limits on the extent to which government may punish disclosures by participants in the criminal process, the Court having invalidated a restriction on a grand jury witness’s disclosure of his own testimony after the grand jury had been discharged.¹³³⁸

Obscenity.—Although public discussion of political affairs is at the core of the First Amendment, the guarantees of speech and press are broader. “We do not accede to appellee’s suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right.”¹³³⁹ The right to impart and to receive “information and ideas, regardless of their social worth . . . is fundamental to our free society.”¹³⁴⁰ Indeed, it is primarily with regard to the entertaining function of expression that the law of obscenity is concerned, as the Court has rejected any concept of “ideological” obscenity.¹³⁴¹ However, this function is not the reason that obscenity is outside the protection of the First Amendment, although the Court has never really been clear about what that reason is.

Adjudication over the constitutional law of obscenity began in Roth v. United States,¹³⁴² in which the Court in an opinion by Justice Brennan settled in the negative the “dispositive question” “whether obscenity is utterance within the area of protected speech and press.”¹³⁴³ The Court then undertook a brief historical survey to demonstrate that “the unconditional phrasing of the First Amendment was not intended to protect every utterance.” 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. It was this history that had caused the Court in Beauharnais to conclude that “libelous utterances are not within the area of constitutionally protected speech,” and this history was deemed to demonstrate that “obscenity, too, was outside the protection intended for speech and press.”¹³⁴⁴ “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people . . . . All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”¹³⁴⁵ It was objected that obscenity legislation punishes because of incitation to impure thoughts and without proof that obscene materials create a clear and present danger of antisocial conduct. But because obscenity was not protected at all, such tests as clear and present danger were irrelevant.¹³⁴⁶

“However,” Justice Brennan continued, “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, e. g., 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.”¹³⁴⁷ The standard that the Court thereupon adopted for the designation of material as unprotected obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”¹³⁴⁸ 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.”¹³⁴⁹

In the years after Roth, the Court struggled with many obscenity cases with varying degrees of success. The cases can be grouped topically, but, with the exception of those cases dealing with protection of children,¹³⁵⁰ unwilling adult recipients,¹³⁵¹ and procedure,¹³⁵² these cases are best explicated chronologically.

Manual Enterprises v. Day¹³⁵³ upset a Post Office ban upon the mailing of certain magazines addressed to homosexual audiences, but resulted in no majority opinion of the Court. Nor did a majority opinion emerge in Jacobellis v. Ohio, which reversed a conviction for exhibiting a motion picture.¹³⁵⁴ Chief Justice Warren’s concurrence in Roth¹³⁵⁵ was adopted by a majority in Ginzburg v. United States,¹³⁵⁶ in which Justice Brennan for 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. The same five-Justice majority, with Justice Harlan concurring, the same day affirmed a state conviction of a distributor of books addressed to a sado-masochistic audience, applying the “pandering” test and concluding that material could be held legally obscene if it appealed to the prurient interests of the deviate group to which it was directed.¹³⁵⁷ Unanimity was shattered, however, when on the same day the Court held that Fanny Hill, a novel at that point 277 years old, was not legally obscene.¹³⁵⁸ The prevailing opinion again 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.¹³⁵⁹

After the divisions engendered by the disparate opinions in the three 1966 cases, the Court over the next several years submerged its differences by per curiam dispositions of nearly three dozen cases, in all but one of which it reversed convictions or civil determinations of obscenity. The initial case was Redrup v. New York,¹³⁶⁰ 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,¹³⁶¹ 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 . . . .”¹³⁶² And so things went for several years.¹³⁶³

Changing membership on the Court raised increasing speculation about the continuing vitality of Roth; it seemed unlikely the Court would long continue its Redrup approach.¹³⁶⁴ The change when it occurred strengthened the powers of government, federal, state, and local, to outlaw or restrictively regulate the sale and dissemination of materials found objectionable, and developed new standards for determining which objectionable materials are legally obscene.

At the end of the October 1971 Term, the Court requested argument on the question 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.¹³⁶⁵ By a fivetofour vote the following Term, the Court in Paris Adult Theatre I v. Slaton adhered to the principle established in Roth that obscene material is not protected by the First and Fourteenth Amendments even if access is limited to consenting adults.¹³⁶⁶ Chief Justice Burger for the Court 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. It does not matter that the states may be acting on the basis of unverifiable assumptions in arriving at the decision to suppress the trade in pornography; 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. Nor does the Constitution embody any concept of laissez faire, or of privacy, or of Millsean “free will,” that curbs governmental efforts to suppress pornography.¹³⁶⁷

In Miller v. California,¹³⁶⁸ the Court prescribed standards by which unprotected pornographic materials were to be identified. Because of the inherent dangers in undertaking to regulate any form of expression, laws to regulate pornography must be carefully limited; their scope is to be confined to materials that “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.”¹³⁶⁹ The 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.”¹³⁷⁰ The standard that a work must be “utterly without redeeming social value” before it may be suppressed was disavowed and discarded. 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 local community standard where the trier of fact sits.¹³⁷¹ Prurient interest and patent offensiveness, the Court indicated, “are essentially questions of fact.”¹³⁷² By contrast, the third or “value” prong of the Miller test 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.”¹³⁷³

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 its examples: “(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.”¹³⁷⁴ Subsequently, the Court held that a publication was not obscene if it “provoked only normal, healthy sexual desires.” To be obscene it must appeal to “a shameful or morbid interest in nudity, sex, or excretion.”¹³⁷⁵ The Court has also indicated that obscenity is not be limited to pictures; books containing only descriptive language may be suppressed.¹³⁷⁶

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.”¹³⁷⁷ But the Court had conferred on juries as triers of fact the determination, based upon their understanding of community standards, whether material was “patently offensive.” Did not this virtually immunize these questions from appellate review? In Jenkins v. Georgia,¹³⁷⁸ 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.” The Court’s own viewing of the motion picture in question convinced it 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.”¹³⁷⁹ But, in a companion case, the Court found that a jury determination of obscenity “was supported by the evidence and consistent with” the standards.¹³⁸⁰

subject rendered by narrow majorities,¹³⁸¹ but nonetheless have guided the Court since. In addition, the Court’s willingness to allow some regulation of non-obscene but sexually explicit or “indecent” expression reduces the importance (outside the criminal area) of whether material is classified as obscene.

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,¹³⁸² unless those materials constitute child pornography. Stanley v. Georgia was an appeal from a state conviction for possession of obscene films discovered in appellant’s home by police officers armed with a search warrant for other items which were not found. The Court reversed, holding that the mere private possession of obscene materials in the home cannot be made 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. “For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.”¹³⁸³ Despite the unqualified assertion in Roth that obscenity was not protected by the First Amendment, the Court observed, it and the cases following were concerned with the governmental interest in regulating commercial distribution of obscene materials. Roth and the cases following that decision are not impaired by today’s decision, the Court insisted,¹³⁸⁴ but in its rejection of each of the state contentions made in support of the conviction the Court appeared to be rejecting much of the basis of Roth. First, there is no governmental interest in protecting an individual’s mind from the effect of obscenity. Second, the absence of ideological content in the films was irrelevant, since the Court will not draw a line between transmission of ideas and entertainment. Third, there is no empirical evidence to support a contention that exposure to obscene materials may incite a person to antisocial conduct; even if there were such evidence, enforcement of laws proscribing the offensive conduct is the answer. Fourth, punishment of mere possession is not necessary to punishment of distribution. Fifth, there was little danger that private possession would give rise to the objections underlying a proscription upon public dissemination, exposure to children and unwilling adults.¹³⁸⁵

Stanley’s broad rationale has been given a restrictive reading, and the holding has been confined to its facts. Any possible implication that Stanley was applicable outside the home and recognized a right to obtain pornography or a right in someone to supply it was soon dispelled.¹³⁸⁶ The Court has consistently rejected Stanley’s theoretical underpinnings, upholding morality-based regulation of the behavior of consenting adults.¹³⁸⁷ Also, Stanley has been held inapplicable to possession of child pornography in the home, the Court determining that the state interest in protecting children from sexual exploitation far exceeds the interest in Stanley of protecting adults from themselves.¹³⁸⁸ Apparently for this reason, a state’s conclusion that punishment of mere possession is a necessary or desirable means of reducing production of child pornography will not be closely scrutinized.¹³⁸⁹

Child Pornography.—In New York v. Ferber,¹³⁹⁰ 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 evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required.”¹³⁹¹ 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.”¹³⁹²

The reach of the state may even extend to private possession of child pornography in the home. In Osborne v. Ohio¹³⁹³ the Court upheld a state law criminalizing the possession or viewing of child pornography as applied to someone who possessed such materials in his home. Distinguishing Stanley v. Georgia, 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 pornography.¹³⁹⁴ Because of the greater importance of the state interest involved, the Court saw less need to require states to demonstrate a strong necessity for regulating private possession as well as 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.¹³⁹⁵ Prohibited pictures included computer-generated (“virtual”) child pornography, and photographs of adult actors who appeared to be minors, as well as “a Renaissance painting depicting a scene from classical mythology.”¹³⁹⁶ The Court observed that statutes that prohibit child pornography that use real children are constitutional because they target “[t]he production of the work, not the content.”¹³⁹⁷ 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.”¹³⁹⁸ 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.’”¹³⁹⁹ 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.”¹⁴⁰⁰ 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.”¹⁴⁰¹

In United States v. Williams,¹⁴⁰² 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 (i. e., is child pornography that is not constitutionally protected).¹⁴⁰³ 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.”¹⁴⁰⁴ 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.¹⁴⁰⁵

Non-obscene But Sexually Explicit and Indecent Expression.—There is expression, consisting of words or pictures, that some find offensive but that does not constitute obscenity and is protected by the First Amendment. Nudity portrayed in films or stills cannot be presumed obscene;¹⁴⁰⁶ nor can offensive language ordinarily be punished simply because it offends someone.¹⁴⁰⁷ Nonetheless, government may regulate sexually explicit but non-obscene expression in a variety of ways. Legitimate governmental interests may be furthered by appropriately narrow regulation, and the Court’s view of how narrow regulation must be is apparently influenced not only by its view of the strength of the government’s interest in regulation, but also by its view of the importance of the expression itself. In other words, sexually explicit expression does not receive the same degree of protection afforded purely political speech.¹⁴⁰⁸

Government has a “compelling” interest in the protection of children from seeing or hearing indecent material, but total bans applicable to adults and children alike are constitutionally suspect.¹⁴⁰⁹ In Reno v. American Civil Liberties Union,¹⁴¹⁰ 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.”¹⁴¹¹ This prohibition would, in effect, have banned indecent material from all Internet sites except those accessible by 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.’”¹⁴¹²

In Reno, the Court distinguished FCC v. Pacifica Foundation,¹⁴¹³ in which it had upheld the FCC’s 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) 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. . . . [On the Internet], the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.”¹⁴¹⁴

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 Web sites that have the objective of earning a profit.¹⁴¹⁵ 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.”¹⁴¹⁶ This is because it results in communications available to a nationwide audience being judged by the standards of the community most likely to be offended. The Supreme Court vacated and remanded, 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.”¹⁴¹⁷

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.”¹⁴¹⁸ 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 certioriari.¹⁴¹⁹

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.”¹⁴²⁰ The plurality asked “whether libraries would violate the First Amendment by employing the filtering software that CIPA requires.”¹⁴²¹ Does CIPA, in other words, effectively violate library patrons’ rights? The plurality concluded that it does 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.¹⁴²²

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.”¹⁴²³ 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.”¹⁴²⁴

The plurality also considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance—in other words, does it violate public libraries’ rights by requiring them to limit their freedom of 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.”¹⁴²⁵

The government may also take notice of objective conditions attributable to the commercialization of sexually explicit but non-obscene materials. Thus, the Court recognized a municipality’s authority to zone land to prevent deterioration of urban areas, upholding an ordinance providing that “adult theaters” showing motion pictures that depicted “specified sexual activities” or “specified anatomical areas” could not be located within 100 feet of any two other establishments included within the ordinance or within 500 feet of a residential area.¹⁴²⁶ Similarly, an adult bookstore was subject to closure as a public nuisance where it was being used as a place for prostitution and illegal sexual activities, because the closure “was directed at unlawful conduct having nothing to do with books or other expressive activity.”¹⁴²⁷ However, a city was held constitutionally powerless to prohibit drive-in motion picture theaters from showing films containing nudity where the screen is visible from a public street or place.¹⁴²⁸ Also, the FCC was unable to justify a ban on transmission of “indecent” but not obscene telephone messages.¹⁴²⁹

The Court has held, however, that “live” productions containing nudity may be regulated to a greater extent than may films or publications. Whether this represents a distinction between live performances and other entertainment media, or whether it signals a more permissive approach overall to governmental regulation of non-obscene but sexually explicit material, remains to be seen. In Barnes v. Glen Theatre, Inc.,¹⁴³⁰ the Court upheld application of Indiana’s public indecency statute to require that dancers in public performances of nude, non-obscene erotic dancing wear “pasties” and a “G-string” rather than appear totally nude. There was no opinion of the Court, three Justices viewing the statute as a permissible regulation of “societal order and morality,”¹⁴³¹ one viewing it as a permissible means of regulating supposed secondary effects of prostitution and other criminal activity,¹⁴³² and a fifth Justice seeing no need for special First Amendment protection from a law of general applicability directed at conduct rather than expression.¹⁴³³ All but one of the Justices agreed that nude dancing is entitled to some First Amendment protection,¹⁴³⁴ but the result of Barnes was a bare minimum of protection. Numerous questions remain unanswered. In addition to the uncertainty over applicability of Barnes to regulation of the content of films or other shows in “adult” theaters,¹⁴³⁵ there is also the issue of its applicability to nudity in operas or theatrical productions not normally associated with commercial exploitation of sex.¹⁴³⁶ But broad implications for First Amendment doctrine are probably unwarranted.¹⁴³⁷ The Indiana statute was not limited in application to barrooms; had it been, then the Twenty-first Amendment would have afforded additional authority to regulate the erotic dancing.

In Erie v. Pap’s A. M.,¹⁴³⁸ the Supreme Court again upheld the application of a statute prohibiting public nudity to an “adult” entertainment establishment. Although there was again only a plurality opinion, parts of that opinion were joined by five justices. These five adopted Justice Souter’s position in Barnes, that the statute satisfied the O’Brien test because it was intended “to combat harmful secondary effects,” such as “prostitution and other criminal activity.”¹⁴³⁹ Justice Souter, however, although joining the plurality opinion, also dissented in part. He continued to believe that secondary effects were an adequate justification for banning nude dancing, but did not believe “that the city has made a sufficient evidentiary showing to sustain its regulation,” and therefore would have remanded the case for further proceedings.¹⁴⁴⁰ He acknowledged his “mistake” in Barnes in failing to make the same demand for evidence.¹⁴⁴¹

The plurality opinion found that Erie’s public nudity ban “regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis,” because Erie allowed dancers to perform wearing only pasties and G-strings.¹⁴⁴² It may follow that “requiring dancers to wear pasties and G-strings may not greatly reduce . . . secondary effects, but O’Brien requires only that the regulation further the interest of combating such effects,” not that it further it to a particular extent.¹⁴⁴³ The plurality opinion did not address the question of whether statutes prohibiting public nudity could be applied to serious theater, but its reliance on secondary effects suggests that they could not.