Obscenity and Indecency:
Obscenity is not protected by the First Amendment and can be regulated by the government. The test for whether something is “obscene” is:
- whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient, shameful or morbid interest; AND
- whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; AND
- whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
- Nudity in both art and pornography enjoy some constitutional protection, although art receives greater protection. The First Amendment does not, however, protect any nudity that satisfies the above test for obscenity.
- Even if a work is not considered obscene for adults, it might be deemed too sexually explicit for the eyes of minors. So-called “harmful to minors” standards are applied to shield children from material such as commercial pornography.
Obscenity should be distinguished from expression that might be offensive to some people, but does not rise to the level of “obscene” under the above test. Here are some examples:
- To protest the Vietnam War draft, a man wrote “F*ck the draft” on his jacket. He was arrested and his arrest was overturned by the Supreme Court on the grounds that his jacket was a form of speech protected by the First Amendment. Although the speech may be offensive, as the Court pointed out, “one man’s vulgarity is another man’s lyric.” Cohen v. California, 403 U.S. 15 (1971).
- An ordinance that made it illegal to promote and incite racial or religious hatred was found unconstitutional. A city wanted to use the ordinance to prevent a Nazi march in a heavily Jewish city. However, the Supreme Court held that any shock that may result from the march came from the ideas themselves and the First Amendment prevented the government from censoring ideas, however reprehensible. Nationalist Socialist Part of America v. Village of Skokie, 432 U.S. 43 (1977).
Government Restrictions on Speech:
Even “pure speech” may be curtailed under specific circumstances. Despite the unqualified language of the First Amendment, there are circumstances when the act of speaking or otherwise expressing one’s self may be subject to government restraint. Only under the most limited circumstances, however, may such restrictions be related to the content of the speech. Ordinarily, such restrictions will only be permissible if they are content-neutral.
Time, Place and Manner of Speech:
The government has some discretion in regulating the time, place or manner of speech of any kind, even if it is otherwise protected. Such regulations govern when, where, or how expression may occur. To be permissible, the regulation must:
(1) be content-neutral
(2) be narrowly tailored to serve a significant government interest; and
(3) leave open alternative channels of communication.
If the government has a genuine and substantial interest in regulating the conduct at issue, and does so in a way that infringes speech rights no more than necessary, the action will normally be sustained. If, however, the real purpose is to suppress speech because of its content or message, or if the state’s objectives are not that important or the means it has chosen to achieve them are not well-tailored, the free speech claim will normally prevail.
- A city may deny a permit for a rock concert based on problems with noise and crowd control at previous concerts. The city may not deny a permit to the rock band because it disagrees with the message of its songs.
- A city may pass an ordinance banning the posting of signs on public property.
Additional Unprotected Categories:
(1) Defamation (see section on Defamation)
(2) Incitement of illegal activity
(3) Commercial speech – false and deceptive advertising is not protected by the First Amendment
(4) Speech by government employees