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.


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.

1187 Police Dep’t of Chicago v. Mosle, 408 U.S. 92, 95 (1972). See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 208–12 (1975); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Carey v. Brown, 447 U.S. 455 (1980); Metromedia v. City of San Diego, 453 U.S. 490 (1981) (plurality opinion); Widmar v. Vincent, 454 U.S. 263 (1981); Regan v. Time, Inc., 468 U.S. 641 (1984).

1188 United States v. Playboy Entertainment Group, Inc., 529 U.S. 801, 818 (2000). The distinction between, on the one hand, directly regulating, and, on the other hand, incidentally affecting, the content of expression was sharply drawn by Justice Harlan in Konigsberg v. State Bar of California, 366 U.S. 36, 49–51 (1961): “Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection. . . . On the other hand, 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 Amendments 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.” The Court set forth the test for “incidental limitations on First Amendment freedoms” in United States v. O’Brien, 391 U.S. 367, 376 (1968). See also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 537 (1987).

1189 Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987).

1190 Sable Commc’ns of Cal. v. FCC, 492 U.S. 115, 126 (1989).

1191 But see Williams-Yulee v. Fla. Bar, 575 U.S. ___, No. 13–1499, slip op. (2015) (upholding a provision of the state judicial code prohibiting judicial candidates from personally soliciting campaign funds); Burson v. Freeman, 504 U.S. 191 (1992) (plurality opinion) (upholding state law prohibiting the solicitation of votes and the display or distribution of campaign literature within 100 feet of a polling place).

1192 See Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987) (citing Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530, 537 (1980)).

1193 See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); see also Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (holding that content-neutral “speech regulations are those that are justified without reference to the content of the regulated speech.”) (internal quotations and citations omitted).

1194 See 485 U.S. 312, 315 (1988).

1195 See Ward, 491 U.S. at 791.

1196 See 564 U.S. 552, 566 (2011).

1197 See Turner Broad. Sys. v. FCC, 512 U.S. 622, 642–43 (1994) (“Nor will the mere assertion of a content-neutral purpose be enough to save a law which, on its face, discriminates, based on content.”).

1198 See Reed v. Town of Gilbert, 576 U.S. ___, No. 13–502, slip op. at 8 (2015) (“But Ward’s framework applies only if a statute is content-neutral.”) (internal citations and quotations omitted).

1199 Id. at 8. The Reed Court ultimately held that the sign code was not narrowly tailored to further the justifications for the law—aesthetics and traffic safety— because the code did allow many signs that threatened the beauty of the town and because the town could not demonstrate that directional signs posed a greater threat to safety than other types of signs that were treated differently under the code. Id. at 14–15.

1200 Id. at 10.

1201 Id.

1202 See United States v. Stevens, 559 U.S. 460, 468 (2010).

1203 315 U.S. 568, 571–72 (1942).

1204 See New York v. Ferber, 458 U.S. 747, 759 (1982).

1205 See, e.g., United States v. Alvarez, 567 U.S. ___, No. 11–210, slip op. at 5 (2012) (plurality opinion) (“Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements.”); Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 792 (2011) (holding that the obscenity exception to the First Amendment does not cover violent speech); Stevens, 559 U.S. at 472 (declining to “carve out” an exception to First Amendment protections for depictions of illegal acts of animal cruelty); Hustler Magazine v. Falwell, 485 U.S. 46, 55 (1988) (refusing to restrict speech based on its level of “outrageousness”).

1206 505 U.S. 377 (1992).

1207 Id. at 391.

1208 Id.

1209 Id. at 383–84.

1210 Ch. 74, 1 Stat. 596. Note also that the 1918 amendment of the Espionage Act of 1917, ch. 75, 40 Stat. 553, reached “language intended to bring the form of government of the United States . . . or the Constitution . . . or the flag . . . or the uniform of the Army or Navy into contempt, scorn, contumely, or disrepute.” Cf. Abrams v. United States, 250 U.S. 616 (1919). For a brief history of seditious libel here and in Great Britain, see Z. CHAFEE, FREE SPEECH IN THE UNITED STATES 19–35, 497–516 (1941).

1211 376 U.S. 254, 273–76 (1964). See also Abrams v. United States, 250 U.S. 616, 630 (1919) (Justice Holmes dissenting).

1212 380 U.S. 479, 492–96 (1965). A number of state laws were struck down by three-judge district courts pursuant to the latitude prescribed by this case. E.g., Ware v. Nichols, 266 F. Supp. 564 (N.D. Miss. 1967) (criminal syndicalism law); Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1966) (insurrection statute); McSurely v. Ratliff, 282 F. Supp. 848 (E.D. Ky. 1967) (criminal syndicalism). This latitude was then circumscribed in cases attacking criminal syndicalism and criminal anarchy laws. Younger v. Harris, 401 U.S. 37 (1971); Samuels v. Mackell, 401 U.S. 66 (1971).

1213 395 U.S. 444 (1969). See also Garrison v. Louisiana, 379 U.S. 64 (1964); Ashton v. Kentucky, 384 U.S. 195 (1966), considered under “Defamation,” infra.

1214 Stanford v. Texas, 379 U.S. 476 (1965). In United States v. United States District Court, 407 U.S. 297 (1972), a government claim to be free to wiretap in national security cases was rejected on Fourth Amendment grounds in an opinion that called attention to the relevance of the First Amendment.

1215 315 U.S. 568 (1942).

1216 315 U.S. at 573.

1217 315 U.S. at 571–72.

1218 Cohen v. California, 403 U.S. 15, 20 (1971). Cohen’s conviction for breach of the peace, occasioned by his appearance in public with an “offensive expletive” lettered on his jacket, was reversed, in part because the words were not a personal insult and there was no evidence of audience objection.

1219 The cases hold that government may not punish profane, vulgar, or opprobrious words simply because they are offensive, but only if they are “fighting words” that have a direct tendency to cause acts of violence by the person to whom they are directed. Gooding v. Wilson, 405 U.S. 518 (1972); Hess v. Indiana, 414 U.S. 105 (1973); Lewis v. City of New Orleans, 415 U.S. 130 (1974); Lucas v. Arkansas, 416 U.S. 919 (1974); Kelly v. Ohio, 416 U.S. 923 (1974); Karlan v. City of Cincinnati, 416 U.S. 924 (1974); Rosen v. California, 416 U.S. 924 (1974); see also Eaton v. City of Tulsa, 416 U.S. 697 (1974).

1220 Feiner v. New York, 340 U.S. 315 (1951). See also Milk Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 287 (1941), in which the Court held that a court could enjoin peaceful picketing because violence occurring at the same time against the businesses picketed could have created an atmosphere in which even peaceful, otherwise protected picketing could be illegally coercive. But compare NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).

1221 The principle actually predates Feiner.See Cantwell v. Connecticut, 310 U.S. 296 (1940); Terminiello v. Chicago, 337 U.S. 1 (1949). For subsequent application, see Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Brown v. Louisiana, 383 U.S. 131 (1966); Gregory v. City of Chicago, 394 U.S. 111 (1969); Bachellar v. Maryland, 397 U.S. 564 (1970). Significant is Justice Harlan’s statement of the principle reflected by Feiner. “Nor do we have here an instance of the exercise of the State’s police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 (1951).” Cohen v. California, 403 U.S. 15, 20 (1970).

1222 Cohen v. California, 403 U.S. 15 (1971); Bachellar v. Maryland, 397 U.S. 564 (1970); Street v. New York, 394 U.S. 576 (1969); Schacht v. United States, 398 U.S. 58 (1970); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959); Stromberg v. California, 283 U.S. 359 (1931).

1223 Coates v. City of Cincinnati, 402 U.S. 611 (1971); Cohen v. California, 403 U.S. 15 (1971); Gooding v. Wilson, 405 U.S. 518 (1972).

1224 R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992).

1225 394 U.S. 705, 708 (1969) (per curiam).

1226 394 U.S. at 706.

1227 394 U.S. at 707.

1228 394 U.S. at 708. In Virginia v. Black, 538 U.S. 343, 359 (2003), the Court, citing Watts, upheld a statute that outlawed cross burnings done with the intent to intimidate. A cross burning done as “a statement of ideology, a symbol of group solidarity,” or “in movies such as Mississippi Burning,” however, would be protected speech. Id. at 365–366.

1229 458 U.S. 886 (1982). Claiborne is also discussed below under “Public Issue Picketing and Parading.”

1230 458 U.S. at 900, n.29. See id. at 902 for a similar remark by Evers.

1231 458 U.S. at 927.

1232 458 U.S. at 928.

1233 Brandenburg v. Ohio, 395 U.S. 444 (1969). Brandenburg is discussed above under “Is There a Present Test?”

1234 Claiborne, 458 U.S. at 928 n.71.

1235 290 F.3d 1058 (9th Cir. 2002) (en banc), cert. denied, 539 U.S. 958 (2003).

1236 290 F.3d at 1065.

1237 290 F.3d at 1085.

1238 290 F.3d at 1085.

1239 290 F.3d at 1077.

1240 290 F.3d at 1075.

1241 290 F.3d at 1089 (quoting majority opinion at 1077 and adding emphasis).

1242 290 F.3d at 1089, 1091, 1092 (emphasis in original).

1243 290 F.3d at 1094 (citation omitted).

1244 343 U.S. 250 (1952).

1245 Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707–08 (1931).

1246 Beauharnais v. Illinois, 343 U.S. 250, 254–58 (1952).

1247 343 U.S. at 265–66.

1248 343 U.S. at 266.

1249 376 U.S. 254 (1964). See also Collin v. Smith, 447 F. Supp. 676 (N.D. Ill.) (ordinances prohibiting distribution of materials containing racial slurs are unconstitutional), aff’d, 578 F.2d 1197 (7th Cir.), stay denied, 436 U.S. 953 (1978), cert. denied, 439 U.S. 916 (1978) (Justices Blackmun and Rehnquist dissenting on the basis that Court should review case that is in “some tension” with Beauharnais). But see New York v. Ferber, 458 U.S. 747, 763 (1982) (obliquely citing Beauharnais with approval).

1250 505 U.S. 377, 383 (1992) (emphasis in original).

1251 505 U.S. at 384.

1252 Id. 505 U.S. at 391. On the other hand, the First Amendment permits enhancement of a criminal penalty based on the defendant’s motive in selecting a victim of a particular race. Wisconsin v. Mitchell, 508 U.S. 476 (1993). The law has long recognized motive as a permissible element in sentencing, the Court noted. Id. at 485. It distinguished R.A.V. as involving a limitation on speech rather than conduct, and because the state might permissibly conclude that bias-inspired crimes inflict greater societal harm than do non-bias inspired crimes (e.g., they are more likely to provoke retaliatory crimes). Id. at 487–88. See generally Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 SUP. CT. REV. 1.

1253 538 U.S. 343 (2003). A plurality held, however, that a statute may not presume, from the fact that a defendant burned a cross, that he had an intent to intimidate. The state must prove that he did, as “a burning cross is not always intended to intimidate,” but may constitute a constitutionally protected expression of opinion. Id. at 365–66.

1254 538 U.S. at 362–63.

1255 582 U.S. ___, No. 15–1293, slip op. (2017).

1256 Id. at 1.

1257 Id. at 1–2.

1258 376 U.S. 254 (1964).

1259 376 U.S. at 269. Justices Black, Douglas, and Goldberg, concurring, would have held libel laws per se unconstitutional. Id. at 293, 297.

1260 376 U.S. at 269, 270.

1261 376 U.S. at 271.

1262 376 U.S. at 271–72, 278–79. Of course, the substantial truth of an utterance is ordinarily a defense to defamation. See Masson v. New Yorker Magazine, 501 U.S. 496, 516 (1991).

1263 376 U.S. at 272–73.

1264 376 U.S. at 273.

1265 376 U.S. at 279–80. The same standard applies for defamation contained in petitions to the government, the Court having rejected the argument that the petition clause requires absolute immunity. McDonald v. Smith, 472 U.S. 479 (1985).

1266 Beauharnais v. Illinois, 343 U.S. 250, 254–58 (1952).

1267 379 U.S. 64 (1964).

1268 384 U.S. 195 (1966).

1269 Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).

1270 See Rosenblatt v. Baer, 383 U.S. 75 (1966) (supervisor of a county recreation area employed by and responsible to the county commissioners may be public official within Times rule); Garrison v. Louisiana, 379 U.S. 64 (1964) (elected municipal judges); Henry v. Collins, 380 U.S. 356 (1965) (county attorney and chief of police); St. Amant v. Thompson, 390 U.S. 727 (1968) (deputy sheriff); Greenbelt Cooperative Pub. Ass’n v. Bresler, 398 U.S. 6 (1970) (state legislator who was major real estate developer in area); Time, Inc. v. Pape, 401 U.S. 279 (1971) (police captain). The categorization does not, however, include all government employees. Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979).

1271 Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971).

1272 Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).

1273 Garrison v. Louisiana, 379 U.S. 64 (1964), involved charges that judges were inefficient, took excessive vacations, opposed official investigations of vice, and were possibly subject to “racketeer influences.” The Court rejected an attempted distinction that these criticisms were not of the manner in which the judges conducted their courts but were personal attacks upon their integrity and honesty. “Of course, any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation. . . . The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official’s fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character.” Id. at 76–77.

1274 In Monitor Patriot Co. v. Roy, 401 U.S. 265, 274–75 (1971), the Court said: “The principal activity of a candidate in our political system, his ‘office,’ so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him. A candidate who, for example, seeks to further his cause through the prominent display of his wife and children can hardly argue that his qualities as a husband or father remain of ‘purely private’ concern. And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry ‘Foul’ when an opponent or an industrious reporter attempts to demonstrate the contrary. . . . Given the realities of our political life, it is by no means easy to see what statements about a candidate might be altogether without relevance to his fitness for the office he seeks. The clash of reputations is the staple of election campaigns and damage to reputation is, of course, the essence of libel. But whether there remains some exiguous area of defamation against which a candidate may have full recourse is a question we need not decide in this case.”

1275 Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Chief Justice Warren concurring in the result). Curtis involved a college football coach, and Associated Press v. Walker, decided in the same opinion, involved a retired general active in certain political causes. The suits arose from reporting that alleged, respectively, the fixing of a football game and the leading of a violent crowd in opposition to enforcement of a desegregation decree. The Court was extremely divided, but the rule that emerged was largely the one developed in the Chief Justice’s opinion. Essentially, four Justices opposed application of the Times standard to “public figures,” although they would have imposed a lesser but constitutionally based burden on public figure plaintiffs. Id. at 133 (plurality opinion of Justices Harlan, Clark, Stewart, and Fortas). Three Justices applied Times, id. at 162 (Chief Justice Warren), and 172 (Justices Brennan and White). Two Justices would have applied absolute immunity. Id. at 170 (Justices Black and Douglas). See also Greenbelt Cooperative Pub. Ass’n v. Bresler, 398 U.S. 6 (1970).

1276 Public figures “[f]or the most part [are] those who . . . have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).

1277 Rosenbloom v. Metromedia, 403 U.S. 29 (1971). Rosenbloom had been prefigured by Time, Inc. v. Hill, 385 U.S. 374 (1967), a “false light” privacy case considered infra

1278 418 U.S. 323 (1974).

1279 418 U.S. at 347.

1280 418 U.S. at 348–50. Justice Brennan would have adhered to Rosenbloom, id. at 361, while Justice White thought the Court went too far in constitutionalizing the law of defamation. Id. at 369.

1281 Time, Inc. v. Firestone, 424 U.S. 448 (1976).

1282 Wolston v. Reader’s Digest Ass’n, 443 U.S. 157 (1979).

1283 Hutchinson v. Proxmire, 443 U.S. 111 (1979).

1284 443 U.S. at 134 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974)).

1285 Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976). See also Wolston v. Reader’s Digest Ass’n, 443 U.S. 157 (1979).

1286 475 U.S. 767 (1986).

1287 475 U.S. at 780 (Stevens, J., dissenting).

1288 472 U.S. 749 (1985). Justice Powell wrote a plurality opinion joined by Justices Rehnquist and O’Connor, and Chief Justice Burger and Justice White, both of whom had dissented in Gertz, added brief concurring opinions agreeing that the Gertz standard should not apply to credit reporting. Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, dissented, arguing that Gertz had not been limited to matters of public concern, and should not be extended to do so.

1289 472 U.S. at 753 (plurality); id. at 773 (Justice White); id. at 781–84 (dissent).

1290 475 U.S. at 779 n.4. Justice Brennan added a brief concurring opinion expressing his view that such a distinction is untenable. Id. at 780.

1291 See, e.g., Herbert v. Lando, 441 U.S. 153, 199 (1979) (Justice Stewart dissenting).

1292 New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964); Garrison v. Louisiana, 379 U.S. 64, 78 (1964); Cantrell v. Forest City Publishing Co., 419 U.S. 245, 251–52 (1974).

1293 St. Amant v. Thompson, 390 U.S. 727, 730–33 (1968); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967). A finding of “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers” is alone insufficient to establish actual malice. Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989) (nonetheless upholding the lower court’s finding of actual malice based on the “entire record”).

1294 Gertz v. Robert Welch, Inc., 418 U.S. 323, 331–32 (1974); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 83 (1967). See New York Times Co. v. Sullivan, 376 U.S. 254, 285–86 (1964) (“convincing clarity”). A corollary is that the issue on motion for summary judgment in a New York Times case is whether the evidence is such that a reasonable jury might find that actual malice has been shown with convincing clarity. Anderson v. Liberty Lobby, 477 U.S. 242 (1986).

1295 Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986) (leaving open the issue of what “quantity” or standard of proof must be met).

1296 Because the defendants in these cases have typically been media defendants (but see Garrison v. Louisiana, 379 U.S. 64 (1964); Henry v. Collins, 380 U.S. 356 (1965)), and because of the language in the Court’s opinions, some have argued that only media defendants are protected under the press clause and individuals and others are not protected by the speech clause in defamation actions. See discussion, supra, under “Freedom of Expression: Is There a Difference Between Speech and Press?”

1297 Herbert v. Lando, 441 U.S. 153 (1979).

1298 subject v. Claiborne Hardware Co., 458 U.S. 886, 933–34 (1982). Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 688 (1989) (“the reviewing court must consider the factual record in full”); Bose Corp. v. Consumers Union of United States, 466 U.S. 485 (1984) (the “clearly erroneous” standard of Federal Rule of Civil Procedure 52(a) must be subordinated to this constitutional principle).

1299 See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) (“under the First Amendment there is no such thing as a false idea”); Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6 (1970) (holding protected the accurate reporting of a public meeting in which a particular position was characterized as “blackmail”); Letter Carriers v. Austin, 418 U.S. 264 (1974) (holding protected a union newspaper’s use of epithet “scab”).

1300 497 U.S. 1 (1990).

1301 497 U.S. at 18.

1302 497 U.S. at 20. In Milkovich the Court held to be actionable assertions and implications in a newspaper sports column that a high school wrestling coach had committed perjury in testifying about a fight involving his team.

1303 497 U.S. at 19.

1304 501 U.S. 496 (1991).

1305 501 U.S. at 517.

1306 United States v. Wells, 519 U.S. 482, 505–507, and nn. 8–10 (1997) (Stevens, J., dissenting) (listing statute citations).

1307 See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. at 52 (1988) (“False statements of fact are particularly valueless [because] they interfere with the truth-seeking function of the marketplace of ideas.” ); Virginia State Bd. of Pharmacy Virginia Citizens Consumer Council, 425 U.S. at 771 (“Untruthful speech, commercial or otherwise, has never been protected for its own sake.”).

1308 567 U.S. ___, No. 11–210, slip op. (2012).

1309 18 U.S.C. § 704.

1310 Alvarez, slip op. at 8–12 (Kenndy, J.). Justice Kennedy was joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor.

1311 Alvarez, slip op. at 10 (Kennedy, J). Justice Kennedy was joined in his opinion by Chief Justice Roberts, and Justices Ginsburg and Sotomayor..

1312 Alvarez, slip op. at 8–9 (Breyer, J).

1313 See, e.g., William Prosser, Law Of Torts 117 (4th ed. 1971); Prosser, Privacy, 48 Calif. L. Rev. 383 (1960); J. Thomas Mccarthy, The Rights Of Publicity And Privacy (1987); Thomas Emerson, The System Of Freedom Of Expression 544–61 (1970). Note that we do not have here the question of the protection of one’s privacy from governmental invasion.

1314 Restatement (Second), of Torts §§ 652A–652I (1977). These four branches were originally propounded in Prosser’s 1960 article, incorporated in the Restatement, and now “routinely accept[ed].” McCarthy, § 5.8[A].

1315 Time, Inc. v. Hill, 385 U.S. 374, 383 n.7 (1967); and id. at 402, 404 (Justice Harlan, concurring in part and dissenting in part), 411, 412–15 (Justice Fortas dissenting); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 487–89 (1975).

1316 385 U.S. 374 (1967). See also Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974).

1317 Cf. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 250–51 (1974); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 490 n.19 (1975).

1318 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975).

1319 More specifically, the information was obtained “from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection.” 420 U.S. at 491. There was thus involved both the First Amendment and the traditional privilege of the press to report the events of judicial proceedings. Id. at 493, 494–96.

1320 Thus, Justice White for the Court noted that the defense of truth is constitutionally required in suits by public officials or public figures. But “[t]he Court has nevertheless carefully left open the question whether the First and Fourteenth Amendments require that truth be recognized as a defense in a defamatory action brought by a private person as distinguished from a public official or public figure.” 420 U.S. at 490. If truth is not a constitutionally required defense, then it would be possible for the states to make truthful defamation of private individuals actionable and, more important, truthful reporting of matters that constitute invasions of privacy actionable. See Brasco v. Reader’s Digest, 4 Cal.3d 520, 483 P.2d 34, 93 Cal. Rptr. 866 (1971); Commonwealth v. Wiseman, 356 Mass. 251, 249 N.E.2d 610 (1969), cert. denied, 398 U.S. 960 (1970). Concurring in Cohn, 420 U.S. at 497, Justice Powell contended that the question of truth as a constitutionally required defense was long settled in the affirmative and that Gertz itself, which he wrote, was explainable on no other basis. But he too would reserve the question of actionable invasions of privacy through truthful reporting. “In some instances state actions that are denominated actions in defamation may in fact seek to protect citizens from injuries that are quite different from the wrongful damage to reputation flowing from false statements of fact. In such cases, the Constitution may permit a different balance. And, as today’s opinion properly recognizes, causes of action grounded in a State’s desire to protect privacy generally implicate interests that are distinct from those protected by defamation actions.” 420 U.S. at 500.

1321 The Florida Star v. B.J.F., 491 U.S. 524 (1989). The Court left open the question “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, the government may ever punish not only the unlawful acquisition, but the ensuing publication as well.” Id. at 535 n.8 (emphasis in original). In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court held that a content-neutral statute prohibiting the publication of illegally intercepted communications (in this case a cell phone conversation) violates free speech where the person who publishes the material did not participate in the interception, and the communication concerns a public issue.

1322 485 U.S. 46 (1988).

1323 485 U.S. at 47, 48.

1324 485 U.S. at 53.

1325 485 U.S. at 55.

1326 485 U.S. at 53, 56.

1327 562 U.S. ___, No. 09–751, slip op. (March 2, 2011).

1328 Signs displayed at the protest included the phrases “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.” Slip op. at 2.

1329 Slip op. at 8 (citations omitted).

1330 Justice Alito, in dissent, argued that statements made by the defendants on signs and on a website could have been reasonably interpreted as directed at the plaintiffs, and that even if public themes were a dominant theme at the protest, that this should not prevent a suit from being brought on those statements arguably directed at private individuals. Slip op. at 9–11 (Alito, J., dissenting).

1331 433 U.S. 562 (1977). The “right of publicity” tort is conceptually related to one of the privacy strands: “appropriation” of one’s name or likeness for commercial purposes. Id. at 569–72. Justices Powell, Brennan, and Marshall dissented, finding the broadcast protected, id. at 579, and Justice Stevens dissented on other grounds. Id. at 582.

1332 433 U.S. at 573–74. Plaintiff was not seeking to bar the broadcast but rather to be paid for the value he lost through the broadcasting.

1333 433 U.S. at 576–78. This discussion is the closest the Court has come in considering how copyright laws in particular are to be reconciled with the First Amendment. The Court emphasizes that copyright laws encourage the production of work for the public’s benefit.

1334 Landmark Communications v. Virginia, 435 U.S. 829 (1978). The decision by Chief Justice Burger was unanimous, Justices Brennan and Powell not participating, but Justice Stewart would have limited the holding to freedom of the press to publish. Id. at 848. See also Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979).

1335 435 U.S. at 838–42. The Court disapproved of the state court’s use of the clear-and-present-danger test: “Mr. Justice Holmes’ test was never intended ‘to express a technical legal doctrine or to convey a formula for adjudicating cases.’” Id. at 842, quoting from Pennekamp v. Florida, 328 U.S. 331, 353 (1946) (Frankfurter, J. concurring).

1336 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), in the context of a civil proceeding, had held that the First Amendment did not permit the imposition of liability on the press for truthful publication of information released to the public in official court records, id. at 496, but had expressly reserved the question “whether the publication of truthful information withheld by law from the public domain is similarly privileged,” id. at 497 n.27, and Landmark on its face appears to answer the question affirmatively. Caution is impelled, however, by the Court’s similar reservation. “We need not address all the implications of that question here, but only whether in the circumstances of this case Landmark’s publication is protected by the First Amendment.” 435 U.S. at 840.

1337 See Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).

1338 Butterworth v. Smith, 494 U.S. 624 (1990).

1339 Winters v. New York, 333 U.S. 507, 510 (1948). Illustrative of the general observation is the fact that “[m]usic, as a form of expression and communication, is protected under the First Amendment.” Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). Nude dancing is also. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 564 (1991).

1340 Stanley v. Georgia, 394 U.S. 557, 564 (1969).

1341 Winters v. New York, 333 U.S. 507 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Commercial Pictures Corp. v. Regents, 346 U.S. 587 (1954); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959). The last case involved the banning of the movie Lady Chatterley’s Lover on the ground that it dealt too sympathetically with adultery. “It is contended that the State’s action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.” Id. at 688–89.

1342 354 U.S. 476 (1957). Heard at the same time and decided in the same opinion was Alberts v. California, involving, of course, a state obscenity law. The Court’s first opinion in the obscenity field was Butler v. Michigan, 352 U.S. 380 (1957), considered infra. Earlier the Court had divided four-to-four and thus affirmed a state court judgment that Edmund Wilson’s Memoirs of Hecate County was obscene. Doubleday & Co. v. New York, 335 U.S. 848 (1948).

1343 Roth v. United States, 354 U.S. 476, 481 (1957). Justice Brennan later changed his mind on this score, arguing that, because the Court had failed to develop a workable standard for distinguishing the obscene from the non-obscene, regulation should be confined to the protection of children and non-consenting adults. See Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973).

1344 354 U.S. at 482–83. The reference is to Beauharnais v. Illinois, 343 U.S. 250 (1952).

1345 354 U.S. at 484. There then followed the well-known passage from Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942).

1346 354 U.S. at 486, also quoting Beauharnais v. Illinois, 343 U.S. 250, 266 (1952).

1347 354 U.S. at 487, 488.

1348 354 U.S. at 489.

1349 354 U.S. at 487 n.20. A statute defining “prurient” as “that which incites lasciviousness or lust” covers more than obscenity, the Court later indicated in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985); obscenity consists in appeal to “a shameful or morbid” interest in sex, not in appeal to “normal, healthy sexual desires.” Brockett involved a facial challenge to the statute, so the Court did not have to explain the difference between “normal, healthy” sexual desires and “shameful” or “morbid” sexual desires.

1350 In Butler v. Michigan, 352 U.S. 380 (1957), the Court unanimously reversed a conviction under a statute that punished general distribution of materials unsuitable for children. Protesting that the statute “reduce[d] the adult population of Michigan to reading only what is fit for children,” the Court pronounced the statute void. Narrowly drawn proscriptions for distribution or exhibition to children of materials which would not be obscene for adults are permissible, Ginsberg v. New York, 390 U.S. 629 (1968), although the Court insists on a high degree of specificity. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968); Rabeck v. New York, 391 U.S. 462 (1968). Protection of children in this context is concurred in even by those Justices who would proscribe obscenity regulation for adults. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113 (1973) (Justice Brennan dissenting). But children do have First Amendment protection and government may not bar dissemination of everything to them. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–14 (1975) (in context of nudity on movie screen). See also FCC v. Pacifica Foundation, 438 U.S. 726, 749–50 (1978); Pinkus v. United States, 436 U.S. 293, 296–98 (1978).

1351 Protection of unwilling adults was the emphasis in Rowan v. Post Office Dep’t, 397 U.S. 728 (1970), which upheld a scheme by which recipients of objectionable mail could put their names on a list and require the mailer to send no more such material. But, absent intrusions into the home, FCC v. Pacifica Foundation, 438 U.S. 726 (1978), or a degree of captivity that makes it impractical for the unwilling viewer or auditor to avoid exposure, government may not censor content, in the context of materials not meeting constitutional standards for denomination as pornography, to protect the sensibilities of some. It is up to offended individuals to turn away. Erznoznik v. City of Jacksonville, 422 U.S. 205, 208–12 (1975). But see Pinkus v. United States, 436 U.S. 293, 300 (1978) (jury in determining community standards must include both “ ‘sensitive’ and ‘insensitive’ persons” in the community, but may not “focus[ ] upon the most susceptible or sensitive members when judging the obscenity of materials . . .”).

1352 The First Amendment requires that procedures for suppressing distribution of obscene materials provide for expedited consideration, for placing the burden of proof on government, and for hastening judicial review. Additionally, Fourth Amendment search and seizure law has been suffused with First Amendment principles, so that the law governing searches for and seizures of allegedly obscene materials is more stringent than in most other areas. Marcus v. Search Warrant, 367 U.S. 717 (1961); A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Heller v. New York, 413 U.S. 483 (1973); Roaden v. Kentucky, 413 U.S. 496 (1973); Lo-Ji Sales v. New York, 442 U.S. 319 (1979); see also Walter v. United States, 447 U.S. 649 (1980). Scienter— that is, knowledge of the nature of the materials—is a prerequisite to conviction, Smith v. California, 361 U.S. 147 (1959), but the prosecution need only prove the defendant knew the contents of the material, not that he knew they were legally obscene. Hamling v. United States, 418 U.S. 87, 119–24 (1974). See also Vance v. Universal Amusement Co., 445 U.S. 308 (1980) (public nuisance injunction of showing future films on basis of past exhibition of obscene films constitutes impermissible prior restraint); McKinney v. Alabama, 424 U.S. 669 (1976) (criminal defendants may not be bound by a finding of obscenity of materials in prior civil proceeding to which they were not parties). None of these strictures applies, however, to forfeitures imposed as part of a criminal penalty. Alexander v. United States, 509 U.S. 544 (1993) (upholding RICO forfeiture of the entire adult entertainment book and film business of an individual convicted of obscenity and racketeering offenses). Justice Kennedy, dissenting in Alexander, objected to the “forfeiture of expressive material that had not been adjudged to be obscene.” Id. at 578.

1353 370 U.S. 478 (1962).

1354 378 U.S. 184 (1964). Without opinion, citing Jacobellis, the Court reversed a judgment that Henry Miller’s Tropic of Cancer was obscene. Grove Press v. Gerstein, 378 U.S. 577 (1964). Jacobellis is best known for Justice Stewart’s concurrence, contending that criminal prohibitions should be limited to “hard-core pornography.” The category “may be indefinable,” he added, but “I know it when I see it, and the motion picture involved in this case is not that.” Id. at 197. The difficulty with this visceral test is that other members of the Court did not always “see it” the same way; two years later, for example, Justice Stewart was on opposite sides in two obscenity decisions decided on the same day. A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney Genera, 383 U.S. 413 (1966) (concurring on basis that book was not obscene); Mishkin v. New York, 383 U.S. 502, 518 (1966) (dissenting from finding that material was obscene).

1355 Roth v. United States, 354 U.S. 476, 494 (1957).

1356 383 U.S. 463 (1966). Pandering remains relevant in pornography cases. Splawn v. California, 431 U.S. 595 (1977); Pinkus v. United States, 436 U.S. 293, 303–04 (1978).

1357 Mishkin v. New York, 383 U.S. 502 (1966). See id. at 507–10 for discussion of the legal issue raised by the limited appeal of the material. The Court relied on Mishkin in Ward v. Illinois, 431 U.S. 767, 772 (1977).

1358 A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney Genera, 383 U.S. 413 (1966).

1359 383 U.S. at 418. On the precedential effect of the Memoirs plurality opinion, see Marks v. United States, 430 U.S. 188, 192–94 (1977).

1360 386 U.S. 767 (1967).

1361 386 U.S. at 771.

1362 386 U.S. at 770–71. The majority was thus composed of Chief Justice Warren and Justices Black, Douglas, Brennan, Stewart, White, and Fortas.

1363 See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 82–83 & n.8 (1973) (Justice Brennan dissenting) (describing Redrup practice and listing 31 cases decided on the basis of it).

1364 See United States v. Reidel, 402 U.S. 351 (1971) (federal prohibition of dissemination of obscene materials through the mails is constitutional); United States v. Thirty-seven Photographs, 402 U.S. 363 (1971) (customs seizures of obscene materials from baggage of travelers are constitutional). In Grove Press v. Maryland State Bd. of Censors, 401 U.S. 480 (1971), a state court determination that the motion picture “I Am Curious (Yellow)” was obscene was affirmed by an equally divided Court, Justice Douglas not participating. And Stanley v. Georgia, 394 U.S. 557, 560–64, 568 (1969), had insisted that Roth remained the governing standard.

1365 Paris Adult Theatre I v. Slaton, 408 U.S. 921 (1972); Alexander v. Virginia, 408 U.S. 921 (1972).

1366 413 U.S. 49 (1973).

1367 413 U.S. at 57, 60–62, 63–64, 65–68. Delivering the principal dissent, Justice Brennan argued that the Court’s Roth approach allowing the suppression of pornography was a failure, that the Court had not and could not formulate standards by which protected materials could be distinguished from unprotected materials, and that the First Amendment had been denigrated through the exposure of numerous persons to punishment for the dissemination of materials that fell close to one side of the line rather than the other, but more basically by deterrence of protected expression caused by the uncertainty. Id. at 73. “I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” Id. at 113. Justices Stewart and Marshall joined this opinion; Justice Douglas dissented separately, adhering to the view that the First Amendment absolutely protected all expression. Id. at 70.

1368 413 U.S. 15 (1973).

1369 Miller v. California, 413 U.S. 15, 27 (1973). The Court stands ready to read into federal statutes the standards it has formulated. United States v. 12 200–Ft. Reels of Film, 413 U.S. 123, 130 n.7 (1973) (Court is prepared to construe statutes proscribing materials that are “obscene,” “lewd,” “lascivious,” “filthy,” “indecent,” and “immoral” as limited to the types of “hard core” pornography reachable under the Miller standards). For other cases applying Miller standards to federal statutes, see Hamling v. United States, 418 U.S. 87, 110–16 (1974) (use of the mails); United States v. Orito, 413 U.S. 139 (1973) (transportation of pornography in interstate commerce). The Court’s insistence on specificity in state statutes, either as written by the legislature or as authoritatively construed by the state court, appears to have been significantly weakened, in fact if not in enunciation, in Ward v. Illinois, 431 U.S. 767 (1977).

1370 Miller v. California, 413 U.S. at 24.

1371 It is the unprotected nature of obscenity that allows this inquiry; offensiveness to local community standards is, of course, a principle completely at odds with mainstream First Amendment jurisprudence. See,e.g., Texas v. Johnson, 491 U.S. 397 (1989); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

1372 413 U.S. at 30–34. “A juror is entitled to draw on his knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law.” Hamling v. United States, 418 U.S. 87, 104 (1974). The holding does not compel any particular circumscribed area to be used as a “community.” In federal cases, it will probably be the judicial district from which the jurors are drawn, id. at 105–106. Indeed, the jurors may be instructed to apply “community standards” without any definition being given of the “community.” Jenkins v. Georgia, 418 U.S. 153, 157 (1974). In a federal prosecution for use of the mails to transmit pornography, the fact that the legislature of the state within which the transaction takes place has abolished pornography regulation except for dealings with children does not preclude permitting the jurors in the federal case to make their own definitions of what is offensive to contemporary community standards; they may be told of the legislature’s decision but they are not bound by it. Smith v. United States, 431 U.S. 291 (1977).

1373 Pope v. Illinois, 481 U.S. 497, 500–01 (1987).

1374 Miller v. California, 413 U.S. 15, 25 (1973). Quoting Miller’s language in Hamling v. United States, 418 U.S. 87, 114 (1974), the Court reiterated that it was only “hard-core” material that was unprotected. “While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is ‘patently offensive’ within the meaning of the obscenity test set forth in the Miller cases.” Referring to this language in Ward v. Illinois, 431 U.S. 767 (1977), the Court upheld a state court’s power to construe its statute to reach sadomasochistic materials not within the confines of the Miller language.

1375 Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1984).

1376 Kaplan v. California, 413 U.S. 115 (1973).

1377 413 U.S. at 25.

1378 418 U.S. 153 (1974).

1379 418 U.S. at 161. The film at issue was Carnal Knowledge.

1380 Hamling v. United States, 418 U.S. 87 (1974). In Smith v. United States, 431 U.S. 291, 305–06 (1977), the Court explained that jury determinations in accordance with their own understanding of the tolerance of the average person in their community are not unreviewable. Judicial review would pass on (1) whether the jury was properly instructed to consider the entire community and not simply the members’ own subjective reaction or the reactions of a sensitive or of a callous minority, (2) whether the conduct depicted fell within the examples specified in Miller, (3) whether the work lacked serious literary, artistic, political, or scientific value, and (4) whether the evidence was sufficient. The Court indicated that the value test of Miller “was particularly amenable to judicial review.” The value test is not to be measured by community standards, the Court later held in Pope v. Illinois, 481 U.S. 497 (1987), but instead by a “reasonable person” standard. An erroneous instruction on this score, however, may be “harmless error.” Id. at 503.

1381 For other five-to-four decisions of the era, see Marks v. United States, 430 U.S. 188 (1977); Smith v. United States, 431 U.S. 291 (1977); Splawn v. California, 431 U.S. 595 (1977); and Ward v. Illinois, 431 U.S. 767 (1977).

1382 Stanley v. Georgia, 394 U.S. 557 (1969).

1383 394 U.S. at 564.

1384 394 U.S. at 560–64, 568.

1385 394 U.S. at 565–68.

1386 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65–68 (1973). Transportation of unprotected material for private use may be prohibited, United States v. Orito, 413 U.S. 139 (1973), and the mails may be closed, United States v. Reidel, 402 U.S. 351 (1971), as may channels of international movement, United States v. Thirty-seven Photographs, 402 U.S. 363 (1971); United States v. 12 200–Ft. Reels of Film, 413 U.S. 123 (1973).

1387 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65–70 (1973) (commercial showing of obscene films to consenting adults); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (regulation of non-obscene, nude dancing restricted to adults).

1388 Osborne v. Ohio, 495 U.S. 103 (1990).

1389 495 U.S. at 109–10.

1390 458 U.S. 747 (1982). Decision of the Court was unanimous, although there were several limiting concurrences. Compare,e.g., 775 (Justice Brennan, arguing for exemption of “material with serious literary, scientific, or educational value”), with 774 (Justice O’Connor, arguing that such material need not be excepted). The Court did not pass on the question, inasmuch as the materials before it were well within the prohibitable category. Id. at 766–74.

1391 458 U.S. at 763–64.

1392 458 U.S. at 764 (emphasis original). Child pornography need not meet Miller obscenity standards to be unprotected by the First Amendment. Id. at 764–65.

1393 495 U.S. 103 (1990).

1394 495 U.S. at 108.

1395 535 U.S. 234 (2002).

1396 535 U.S. at 241.

1397 535 U.S. at 249; see also id. at 241.

1398 535 U.S. at 241.

1399 535 U.S. at 253.

1400 535 U.S. at 242.

1401 535 U.S. at 255. Following Ashcroft v. Free Speech Coalition, Congress enacted the PROTECT Act, Pub. L. 108–21, 117 Stat. 650 (2003), which, despite the decision in that case, defined “child pornography” so as to continue to prohibit computer-generated child pornography (but not other types of child pornography produced without an actual minor). 18 U.S.C. § 2256(8)(B). In United States v. Williams, 128 S. Ct. 1830, 1836 (2008), the Court, without addressing the PROTECT Act’s new definition, cited Ashcroft v. Free Speech Coalition with approval.

1402 128 S. Ct. 1830 (2008).

1403 18 U.S.C. § 2252A(a)(3)(B).

1404 128 S. Ct. at 1839.

1405 128 S. Ct. at 1841, 1842, 1843. Justice Souter, in a dissenting opinion joined by Justice Ginsburg, agreed that “Congress may criminalize proposals unrelated to any extant image,” but disagreed with respect to “proposals made with regard to specific, existing [constitutionally protected] representations.” Id. at 1849. Justice Souter believed that, “if the Act stands when applied to identifiable, extant [constitutionally protected] pornographic photographs, then in practical terms Ferber and Free Speech Coalition fall. They are left as empty as if the Court overruled them formally . . . .” Id. at 1854. Justice Scalia’s opinion for the majority replied that this “is simply not true . . . . Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography. . . . There is no First Amendment exception from the general principle of criminal law that a person attempting to commit a crime need not be exonerated because he has a mistaken view of the facts.” Id. at 1844–45.

1406 Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–14 (1975).

1407 E.g., Cohen v. California, 403 U.S. 15 (1971). Special rules apply to broadcast speech, which, because of its pervasive presence in the home and its accessibility to children, is accorded “the most limited First Amendment protection” of all media; non-obscene but indecent language and nudity may be curtailed, with the time of day and other circumstances determining the extent of curtailment. FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978). However, efforts by Congress and the FCC to extend the indecency ban to 24 hours a day were rebuffed by an appeals court. Action for Children’s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991) (invalidating regulations promulgated pursuant to Pub. L. 100–459, § 608), cert. denied, 503 U.S. 913 (1992). Earlier, the same court had invalidated an FCC restriction on indecent, non-obscene broadcasts from 6 a.m. to midnight, finding that the FCC had failed to adduce sufficient evidence to support the restraint. Action for Children’s Television v. FCC, 852 F.2d 1332, 1335 (D.C. Cir. 1988). In 1992, however, Congress imposed a 6 a.m.-to-midnight ban on indecent programming, with a 10 p.m.-to-midnight exception for public radio and television stations that go off the air at or before midnight. Pub. L. 102–356, § 16 (1992), 47 U.S.C. § 303 note. This time, after a three-judge panel found the statute unconstitutional, the en banc court of appeals upheld it, except for its 10 p.m.-to-midnight ban on indecent material on non-public stations. Action for Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996). See also “Broadcast Radio and Television,” supra.

1408 Justice Scalia, concurring in Sable Communications v. FCC, 492 U.S. 115, 132 (1989), suggested that there should be a “sliding scale” taking into account the definition of obscenity: “The more narrow the understanding of what is ‘obscene,’ and hence the more pornographic what is embraced within the residual category of ‘indecency,’ the more reasonable it becomes to insist upon greater assurance of insulation from minors.” Barnes v. Glen Theatre, 501 U.S. 560 (1991), upholding regulation of nude dancing even in the absence of a threat to minors, may illustrate a general willingness by the Court to apply soft rather than strict scrutiny to regulation of more sexually explicit expression.

1409 See Sable Communications v. FCC, 492 U.S. 115 (1989) (FCC’s “dial-a-porn” rules imposing a total ban on “indecent” speech are unconstitutional, given less restrictive alternatives—e.g., credit cards or user IDs—of preventing access by children). Pacifica Foundation is distinguishable, the Court reasoned, because that case did not involve a “total ban” on broadcast, and also because there is no “captive audience” for the “dial-it” medium, as there is for the broadcast medium. 492 U.S. at 127–28. Similar rules apply to regulation of cable TV. In Denver Area Educational Telecommunications Consortium v. FCC, 518 U.S. 727, 755 (1996), the Court, acknowledging that protection of children from sexually explicit programming is a “compelling” governmental interest (but refusing to determine whether strict scrutiny applies), nonetheless struck down a requirement that cable operators segregate and block indecent programming on leased access channels. The segregate-and-block restrictions, which included a requirement that a request for access be in writing, and which allowed for up to 30 days’ delay in blocking or unblocking a channel, were not sufficiently protective of adults’ speech and viewing interests to be considered either narrowly or reasonably tailored to serve the government’s compelling interest in protecting children. In United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000), the Supreme Court, explicitly applying strict scrutiny to a content-based speech restriction on cable TV, struck down a federal statute designed to “shield children from hearing or seeing images resulting from signal bleed.” Id. at 806. The Court seems to be becoming less absolute in viewing the protection of all minors (regardless of age) from all indecent material (regardless of its educational value and parental approval) to be a compelling governmental interest. In striking down the Communications Decency Act of 1996, the Court would “neither accept nor reject the Government’s submission that the First Amendment does not forbid a blanket prohibition on all ‘indecent’ and ‘patently offensive’ messages communicated to a 17-year-old—no matter how much value the message may have and regardless of parental approval. It is at least clear that the strength of the Government’s interest in protecting minors is not equally strong throughout the coverage of this broad statute.” Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). In Playboy Entertainment Group, 529 U.S. at 825, the Court wrote: “Even upon the assumption that the government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech.” The Court also would “not discount the possibility that a graphic image could have a negative impact on a young child” (id. at 826), thereby suggesting again that it may take age into account when applying strict scrutiny.

1410 521 U.S. 844 (1997).

1411 The other provision the Court struck down would have prohibited indecent communications, by telephone, fax, or e-mail, to minors.

1412 521 U.S. at 874–75. The Court did not address whether, if less restrictive alternatives would not be as effective, the government would then be permitted to reduce the adult population to only what is fit for children. Courts of appeals, however, have written that “[t]he State may not regulate at all if it turns out that even the least restrictive means of regulation is still unreasonable when its limitations on freedom of speech are balanced against the benefits gained from those limitations.” ACLU v. Reno, 217 F.3d 162, 179 (3d Cir. 2000), vacated and remanded sub nom., Ashcroft v. ACLU, 535 U.S. 564 (2002); Carlin Communications, Inc. v. FCC, 837 F.2d 546, 555 (2d Cir. 1988).

1413 438 U.S. 726 (1978).

1414 521 U.S. at 867.

1415 “Harmful to minors” statutes ban the distribution of material to minors that is not necessarily obscene under the Miller test. In Ginsberg v. New York, 390 U.S. 629, 641 (1968), the Supreme Court, applying a rational basis standard, upheld New York’s harmful-to-minors statute.

1416 ACLU v. Reno, 217 F.3d 162, 166 (3d Cir. 2000).

1417 Ashcroft v. ACLU, 535 U.S. 564, 585 (2002) (emphasis in original).

1418 Ashcroft v. ACLU, 542 U.S. 656, 667 (2004). Justice Breyer, dissenting, wrote that blocking and filtering software is not a less restrictive alternative because “it is part of the status quo” and “[i]t is always less restrictive to do nothing than to do something.” Id. at 684. The majority opinion countered that Congress “may act to encourage the use of filters,” and “[t]he need for parental cooperation does not automatically disqualify a proposed less restrictive alternative.” Id. at 669.

1419 American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), aff’d sub nom. American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008), cert. denied, 129 S. Ct. 1032 (2009).

1420 539 U.S. 194, 199 (2003).

1421 539 U.S. at 203.

1422 539 U.S. at 205.

1423 539 U.S. at 208.

1424 539 U.S. at 209. Justice Kennedy, concurring, noted that, “[i]f some libraries do not have the capacity to unblock specific Web sites or to disable the filter . . . that would be the subject for an as-applied challenge, not the facial challenge made in this case.” 539 U.S. at 215. Justice Souter, dissenting, noted that “the statute says only that a library ‘may’ unblock, not that it must.” 539 U.S. at 233.

1425 539 U.S. at 212.

1426 Young v. American Mini Theatres, 427 U.S. 50 (1976). Four of the five majority Justices thought the speech involved deserved less First Amendment protection than other expression, id. at 63–71, while Justice Powell, concurring, thought the ordinance was sustainable as a measure that served valid governmental interests and only incidentally affected expression. Id. at 73. Justices Stewart, Brennan, Marshall, and Blackmun dissented. Id. at 84, 88. Young was followed in City of Renton v. Playtime Theatres, 475 U.S. 41 (1986), upholding a city ordinance prohibiting location of adult theaters within 1,000 feet of residential areas, churches, or parks, and within one mile of any school. Rejecting the claim that the ordinance regulated content of speech, the Court indicated that such time, place and manner regulations are valid if “designed to serve a substantial governmental interest” and if “allow[ing] for reasonable alternative avenues of communication.” Id. at 50. The city had a substantial interest in regulating the “undesirable secondary effects” of such businesses. And, although the suitability for adult theaters of the remaining 520 acres within the city was disputed, the Court held that the theaters “must fend for themselves in the real estate market,” and are entitled only to “a reasonable opportunity to open and operate.” Id. at 54. The Supreme Court also upheld zoning of sexually oriented businesses in FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990), and City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).

1427 Arcara v. Cloud Books, 478 U.S. 697, 707 (1986).

1428 Erznoznik v. City of Jacksonville, 422 U.S. 204 (1975).

1429 Sable Communications of California v. FCC, 492 U.S. 115 (1989).

1430 501 U.S. 560 (1991).

1431 501 U.S. at 568 (Chief Justice Rehnquist, joined by Justices O’Connor and Kennedy).

1432 501 U.S. at 581 (Justice Souter).

1433 501 U.S. at 572 (Justice Scalia). The Justice thus favored application of the same approach applied to free exercise of religion in Employment Division v. Smith, 494 U.S. 872 (1990).

1434 Earlier cases had established as much. See California v. LaRue, 409 U.S. 109, 118 (1972); Southeastern Promotions v. Conrad, 420 U.S. 546, 557–58 (1975); Doran v. Salem Inn, 422 U.S. 922, 932 (1975); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981); New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 716, 718 (1981). Presumably, then, the distinction between barroom erotic dancing, entitled to minimum protection, and social “ballroom” dancing, not expressive and hence not entitled to First Amendment protection (see City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989)), still hangs by a few threads. Justice Souter, concurring in Barnes, 501 U.S. 560, 587 (1991), recognized the validity of the distinction between ballroom and erotic dancing, a validity that had been questioned by a dissent in the lower court. Miller v. Civil City of South Bend, 904 F.2d 1081, 1128–29 (7th Cir. 1990) (Easterbrook, J.).

1435 Although Justice Souter relied on what were essentially zoning cases (Young v. American Mini Theatres and Renton v. Playtime Theatres) to justify regulation of expression itself, he nonetheless pointed out that a pornographic movie featuring one of the respondent dancers was playing nearby without interference by the authorities. This suggests that, at least with respect to direct regulation of the degree of permissible nudity, he might draw a distinction between “live” and film performances even while acknowledging the harmful “secondary” effects associated with both.

1436 The Court has not ruled directly on such issues. See Southeastern Promotions v. Conrad, 420 U.S. 546 (1975) (invalidating the denial of use of a public auditorium for a production of the musical “Hair,” in the absence of procedural safeguards that must accompany a system of prior restraint). Presumably the Barnes plurality’s public-morality rationale would apply equally to the “adult” stage and to the operatic theater, while Justice Souter’s secondary effects rationale would not. But the plurality ducked this issue, reinterpreting the lower court record to deny that Indiana had distinguished between “adult” and theatrical productions. 501 U.S. at 564 n.1 (Chief Justice Rehnquist); id. at 574 n.2 (Justice Scalia). On the other hand, the fact that the state authorities disclaimed any intent to apply the statute to theatrical productions demonstrated to dissenting Justice White (who was joined by Justices Marshall, Blackmun, and Stevens) that the statute was not a general prohibition on public nudity, but instead was targeted at “the communicative aspect of the erotic dance.” Id. at 591.

1437 The Court had only recently affirmed that music is entitled to First Amendment protection independently of the message conveyed by any lyrics (Ward v. Rock Against Racism, 491 U.S. 781 (1989)), so it seems implausible that the Court was signaling a narrowing of protection to only ideas and opinions. Rather, the Court seems willing to give government the benefit of the doubt when it comes to legitimate objectives in regulating expressive conduct that is sexually explicit. For an extensive discourse on the expressive aspects of dance and the arts in general, and the striptease in particular, see Judge Posner’s concurring opinion in the lower court’s disposition of Barnes. Miller v. Civil City of South Bend, 904 F.2d 1081, 1089 (7th Cir. 1990).

1438 529 U.S. 277 (2000).

1439 529 U.S. at 292, 291.

1440 529 U.S. 310–311.

1441 529 U.S. at 316.

1442 529 U.S. at 301. The plurality said that, though nude dancing is “expressive conduct,” we think that it falls “only within the outer ambit of the First Amendment’s protection.” Id. at 289. The opinion also quotes Justice Stevens to the same effect with regard to erotic materials generally. Id. at 294. In United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 826 (2000), however, the Court wrote that it “cannot be influenced . . . by the perception that the regulation in question is not a major one because the speech [‘signal bleed’ of sexually oriented cable programming] is not very important.”

1443 529 U.S. at 301.

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