澳门六合彩开奖直播

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.

鈥擜mendment I. Ratified December 15, 1791

While the language of the First Amendment looks straightforward, its text conceals as much as it reveals. Although 鈥淐ongress鈥� alone is mentioned, the First Amendment applies to any agent of the national government, including the president. As originally framed, the Bill of Rights guaranteed immunity only from the actions of the federal government, not the states. This changed in the twentieth century with the 鈥渄octrine of selective incorporation,鈥� which applied the First Amendment to the states through the Fourteenth Amendment鈥檚 due process clause: no state shall 鈥渄eprive any person of life, liberty, or property, without due process of law鈥� (See Gitlow v. New York, 1925). The incorporation doctrine authorized the Supreme Court for the first time in its history to review state laws that might infringe upon the First Amendment. Moreover, the liberty guaranteed by the First Amendment should 听be understood primarily in terms of protection from government control. Thus, it may come as a surprise to some that the First Amendment does not apply to private institutions鈥攖hose social, political, civil, and religious groups, associations, and corporations that are not units of the federal or state government. So while a state university is bound by the First Amendment, a private college or a religious association may restrict expression as it sees fit in accordance with its own mission statement. A literal interpretation of the word 鈥渟peech鈥� is likewise misleading, since the Supreme Court has gradually extended the First Amendment to include symbolic, nonverbal expression such as flag-burning, visual imagery such as pornography, commercial communication such as advertising, and children鈥檚 entertainment such as video games. Finally, although the First Amendment says 鈥渘o law,鈥� the right to free speech is not absolute. As Justice Holmes famously said, it does not give one the right 鈥渢o falsely shout fire in a crowded theater鈥� (Schenck v. United States, 1919). Indeed, one of the enduring issues faced by the Supreme Court has been where to draw the line between protected speech and punishable speech. The goal of this documentary volume of landmark cases is to provide students with the basic texts and tools for understanding the Supreme Court鈥檚 evolving jurisprudence on freedom of expression: the First Amendment rights of speech, press, assembly, and association.

Over the past century the First Amendment has attained a preferred place in our constitutional scheme that demands heightened protection by the Supreme Court. In Palko v. State of Connecticut (1937), Justice Benjamin Cardozo (1870鈥�1938) aptly described First Amendment freedoms as 鈥渢he matrix, the indispensable condition, of nearly every other freedom.鈥� Free speech is essential to democracy for several reasons. First, 听the expressive acts of speaking, writing, associating, 听assembling, and dissenting听 are crucial to the fundamental democratic principle of consent of the governed. Second, freedom of speech and of the press help to ensure the accountability of government and public officials. They expose the darkness of corruption to daylight. Third, free speech functions as a 鈥渟afety valve鈥� that provides an outlet for dissenting and radical voices to 鈥渂low off steam,鈥� as Justice William O. Douglass (1889鈥�1980) eloquently argued in Dennis v. United States (1951). 鈥淭he airing of ideas releases pressures which otherwise might become destructive.鈥� 听Indeed, free speech is not only instrumental to democracy, it is valuable as an end in itself, as integral to individual human flourishing and the search for truth. (See Justice Brandeis鈥� concurrence in Whitney v. California, 1927). Finally free speech advances progress through a competition of ideas that spurs innovation and creativity. Justice Oliver Wendell Holmes (1841鈥�1935) made this point in Abrams v. United States (1919), using the metaphor of a marketplace of ideas in which the best ideas slowly win out while archaic notions are abandoned.

As the very lifeblood of democracy, political speech is guaranteed the utmost protection by the Court. Along with other fundamental rights such as the many guarantees of due process, it is awarded an advantage in any legal battle. The landmark First Amendment cases always pit the interest of a governmental authority (national, state, or local) against the dissenting party鈥檚 expressive right of speech, press, or association. To help appreciate this clash of interests, consider the image of Lady Justice, the goddess Themis, commonly found in many American courtrooms. She is blindfolded and clasps a sword in one hand and holds up a scale in the other. Her blindfold represents impartiality; the scale, equity; and the sword, the force of law. Given the privileged status of speech in our constitutional scheme, however, her scale will be tipped in favor of the First Amendment. Thus, right from the beginning of the contest, the government faces a burden, an 鈥渦phill battle,鈥� if censorship is to prevail over free expression. That is to say, laws that suppress or threaten political speech are subjected to a heightened level of judicial review known as 鈥渟trict scrutiny.鈥�

Since an understanding of the Court鈥檚 jurisprudence requires familiarity with its legal terminology, it will be useful to define some of the key First Amendment concepts readers will encounter throughout these documents. For example, to survive strict scrutiny, a law that infringes upon speech must pass two hurdles. First, the government must demonstrate that the law serves a 鈥渃ompelling purpose鈥� or 鈥渆苍诲,鈥� such as national security, civil order, or morality. This first hurdle is not too difficult for the government to overcome. Appealing to an implied or expressed constitutional power under state or federal law is usually sufficient. Second, the government must show that the law in question is 鈥渘arrowly tailored鈥� to achieve its purpose by 鈥渢he least restrictive means.鈥� This is a higher hurdle. To appreciate 鈥渘arrow tailoring,鈥� consider the example of a bulky winter jacket. While its 鈥渃ompelling purpose,鈥� or end, is to protect you from cold weather, its means to do so鈥攊ts excessive size and weight鈥攏onetheless restrict your ability to move and breath freely. Much like being smothered in a large jacket, personal liberty is suffocated by poorly written laws that restrict speech. By contrast, a narrowly tailored jacket not only protects you from the elements, it accomplishes this end through means that allow you to move and breath freely.

The review of 鈥渟trict scrutiny鈥� along with its requirement of 鈥渘arrow tailoring鈥� safeguards against two types of infirm laws that consistently menace liberty: 鈥渦nduly vague laws鈥� whose imprecision forces people of common intelligence to guess at their meaning and application; and 鈥渙verly broad laws鈥� that sweep too expansively in burdening protected speech along with unprotected speech. The modifiers 鈥渦nduly鈥� and 鈥渙verly鈥� are important recognitions of the fact that all language contains some degree of vagueness and ambiguity. Contrary to those who expect mathematical certainty in jurisprudence, the law will always have some 鈥済ray area.鈥� Hence the clich茅 that jurisprudence is more an art than a science. Notwithstanding this inherent ambiguity, however, 鈥渦nduly vague鈥� and 鈥渙verly broad鈥� laws confer too much discretion upon authorities to abuse power in an arbitrary manner through ever-changing and unpredictable definitions. Unpopular views can be more easily suppressed under the pretext of generalized claims of 鈥減ublic order.鈥� Returning to the Lady Justice metaphor, overly broad and unduly vague laws tilt her scale in favor of the authority and shift the burden of proof onto the dissenter, who is tasked with overcoming the state鈥檚 interest. To make thing worse, the very threat of punishment from these laws creates the notorious 鈥渃hilling effect鈥� that induces self-censorship. Fearing repercussions for speaking out, people choose to remain silent.

If free speech is to perform its vital function in serving democracy, it should be exercised fearlessly, not timidly. If citizens are to debate controversial issues forthrightly rather than holding their peace in festering silence, they must do so with the confidence that their expression will not be investigated or punished by authorities. To prevent this chilling effect, the Supreme Court requires ample 鈥渂reathing room鈥� for free speech. 听Put another way, it errs in protecting 鈥渢oo much鈥� expression rather than 鈥渢oo little Consequently, the First Amendment tolerates offensive, feared, disturbing, and even some hateful speech (See New York Times Co. v. Sullivan and Matal v. Tam). Indeed, a core principle of First Amendment interpretation today is that authorities may not bar expression simply because they find it offensive, disturbing, or disagreeable.

Once laws have passed strict scrutiny, under what circumstances may government permissibly restrict speech? When does speech 鈥渃ross the line鈥� between protected and punishable expression? Under current First Amendment law, the government may punish speech only in the case of an emergency when it can demonstrate a tight causal connection or nexus between the speech and an immediate harmful effect(Justice Holmes鈥� dissent in Abrams; Justice Brandeis鈥� concurrence in Whitney). Undifferentiated fear of some possible, remote harm is not sufficient to warrant restriction. Under current First Amendment law, the government can restrict speech only in the case of an emergency, for example, a direct incitement to 鈥渋mminent lawless action鈥� (Brandenburg v. Ohio, 1969).

Though words certainly have the capacity to harm and hurt, the importance of protecting speech likewise outweighs the government鈥檚 interest in protecting citizens from emotional harm. The First Amendment does not protect one鈥檚 feelings. As Chief Justice John Roberts (1955鈥�) explained in the controversial case of Snyder v. Phelps (2011): 鈥淎s a nation we have chosen . . . to protect even hurtful speech on public issues to ensure that we do not stifle public debate.鈥� A different decision in this case that would have given greater weight to the emotional pain inflicted by speech would have constituted a major departure from the Court鈥檚 jurisprudence, which has consistently underscored that 鈥渁 function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger鈥� (see Terminiello v. Chicago, 1949). Because feelings are highly subjective, they elude clear legal specification. Indeed, what would remain of free speech if it was subject to the objections of the most thin-skinned among us?

In addition to the key concepts of 鈥減referred freedom,鈥� 鈥渟trict scrutiny,鈥� 鈥渘arrow tailoring,鈥� 鈥渦ndue vagueness,鈥� 鈥渙verbreadth鈥� and 鈥渃hilling effect,鈥� the fundamental principle of 鈥渧iewpoint鈥� or 鈥渃ontent neutrality鈥� must be added to the list of key First Amendment concepts. Viewpoint neutrality prevents government from restricting speech on the basis of its content, message, or idea, and from favoring one viewpoint or side of a debate over another. This crucial concept explains why the First Amendment provides shelter to social justice activists and racists alike. Justice Holmes, whose thought dominated the Supreme Court鈥檚 jurisprudence on the First Amendment, went so far as to say: 鈥淚f there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought鈥攏ot free thought for those who agree with us but freedom for the thought that we hate” (United States v. Schwimmer, 1929).

With all due respect to Justice Holmes, why shouldn鈥檛 certain messages be banned from public discourse? Why should we tolerate intolerant speech? Nazi propagandist Joseph Goebbels infamously maintained that a lie repeated often enough would eventually be accepted as true. Perhaps certain kinds of speech should be suppressed to prevent falsehood and lies from winning out in the marketplace of ideas. Indeed, history also reveals that people are swayed by base emotions and stirred by demagogic appeals. Perhaps censorship could have prevented the genocides of the twentieth century.

While there are certainly risks involved in tolerating false, offensive, and even hateful speech, the current view of the First Amendment is that the benefits of free speech outweigh the societal costs of censorship. In a passage often cited by the Court, Justice Robert H. Jackson (1892鈥�1954) defended the principle of viewpoint neutrality in these weighty terms: 鈥淚f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein鈥� (West Virginia v. Barnette, 1943). In sum, the First Amendment forbids the government from favoring any public orthodoxy, however well intentioned. In Texas v. Johnson (1989), for example, the Court decided that the state law punishing flag desecration was unconstitutional because it favored a message of patriotism over a disfavored message of contempt. In other words, the Texas law impermissibly engaged in viewpoint discrimination. However abhorrent speech may be, the state cannot take sides in the marketplace of ideas by favoring one message over another through censorship.

The cases in this volume are arranged thematically. For example, they trace the development and evolution of the 鈥渃lear and present danger鈥� test from Schenck through the controlling precedent of Brandenburg and its 鈥渋mminent lawless action鈥� test. In the following decades, the Court expanded free speech to include symbolic expression of flag burning in Texas v. Johnson听 and cross burning in Virginia v. Black (2003). As noted, the Court has underscored that the First Amendment protects offensive, disturbing, and feared speech. This is clearly seen in Cohen v. California (1971) and Matal v. Tam (2017). In Snyder v. Phelps 听the Court preferred free speech over the claims of emotional distress.

The right to liberty of the press is represented by a number of cases, including Near v. Minnesota (1931) and New York Times v. United States (1971). Because freedom of association to unite and advocate with others is a fundamental right implicit in the First Amendment, the volume includes the important precedents of NAACP v. Alabama (1958), Boy Scouts v. Dale (2000), and Roberts v. United States Jaycees (1984).

This volume also explores those categories of unprotected speech that have traditionally been considered to lie outside of the First Amendment: libel (Times v. Sullivan, 1964), obscenity (Miller v. California, 1973), and fighting words (Chaplinsky v. New Hampshire, 1942). Failed efforts to expand these unprotected categories to 鈥済roup libel鈥� and violent video games for children are seen in the respective cases of Beauharnais v. Illinois (1952) and Brown v. Entertainment Merchants Association (2011). The Supreme Court鈥檚 first attempt to regulate the Internet as a 鈥渄ramatic expansion of [a] new marketplace of ideas鈥� is seen in Reno v. American Civil Liberties Union (1997).

The Court鈥檚 First Amendment jurisprudence recognizes a hierarchy of speech that runs the gamut from the heightened protection of political speech to reduced protection of commercial and broadcast speech. Its consideration of lower-value commercial and broadcasting speech is thus seen in the respective cases of Central Hudson Gas & Electric v. Public Service Commission (1980) and FCC v. Pacifica (1978). Finally, the topic of the First Amendment in the educational setting is represented by the cases of Tinker v. Des Moines (1969), Bethel School District v. Fraser (1986), and Morse v. Frederick (2007). Campaign finance is notably absent. Protected under the First Amendment in the landmark case of Buckley v. Valeo (1976) and extended to corporations in Citizens United v. FEC (2010), campaign finance is too complex a topic, we thought, for inclusion in this volume.

In conclusion, while these landmark cases contain many pearls of wisdom about free speech, history teaches us that we cannot always rely on the Court to safeguard our liberties. The Court鈥檚 decisions may be side-stepped or ignored. The Bill of Rights is only a parchment paper unless supported by habits of heart and mind that give it life. Indeed, free speech can only be preserved through a 鈥淔irst Amendment culture鈥� that understands, cherishes, and jealously guards its preferred place in our democracy. This volume hopes to contribute in some small way to that worthy cause.

Illegal Advocacy

• Schenck v. United States 1919. The first and most notable landmark Supreme Court case on free speech. Justice Holmes first articulated the clear and present danger standard. The case also included his oft-repeated metaphor that the First Amendment does not guarantee one the right to falsely shout fire in a crowded theater.
• Abrams v. United States, 1919. Holmes shifted his position on the First Amendment to become, along with Justice Brandeis, one of 鈥渢he Great Dissenters.鈥� Holmes鈥� dissent refined the clear and present danger test to be more protective of speech by including the criterion of 鈥渋mminence鈥� or immediacy. His dissent also made use of the 鈥渇ree trade of ideas鈥� metaphor, which has become the Court鈥檚 dominant rationale for the role of free speech in democracy.
• Gitlow v. New York, 1925. A case that applied the First Amendment to the states through the Fourteenth Amendment鈥檚 liberty clause. In his dissenting opinion, Holmes famously declared that 鈥渆very idea is an incitement鈥濃�攖hat is to say, speech should not be restricted unless it presents some imminent threat under the circumstances. Holmes鈥� dissent anticipated the Court鈥檚 later distinction between advocacy of action versus advocacy of ideas.
• Whitney v. California, 1927. Prosecution of prominent social activist and heiress Charlotte Whitney under California criminal syndicalism law. Brandeis鈥檚 concurring opinion included one of the most profound justifications of the function of free speech in a democratic society ever written. His civic virtue rationale of free speech may be contrasted to Holmes鈥� more libertarian free market view.
• Dennis v. United States, 1951. One of the trials of the century during the height of the Cold War. Dennis was the secretary general of the Communist Party of America. The Court modified the clear and present danger test and adopted the more repressive standard of 鈥渃lear and probable鈥� danger to uphold his conviction under the Smith Act. The precedent has been narrowed considerably by later decisions that are more protective of speech.
• Brandenburg v. Ohio, 1969. The controlling precedent governing illegal advocacy. The case involved the threatening and racist language of a Ku Klux Klansman caught on film. The Court refined the clear and present danger test so that direct incitement must involve 鈥渋mminent lawless action鈥� and the likelihood of 鈥渟teeling others into such action,鈥� a high burden that is very protective of speech. Symbolic and Offensive Speech

Symbolic and Offensive Speech

• Chaplinsky v. New Hampshire, 1942. Justice Jackson articulated the controversial 鈥渇ighting words鈥� doctrine that restricts 鈥� low value speech.鈥� Though the doctrine has since been narrowed significantly, there have been efforts to revive it, along with the group libel doctrine in Beauharnais v. Illinois (1952), as a basis for restricting offensive speech on the basis of race, gender, sexual orientation, etc.
• Beauharnais v. Illinois, 1952. This case is an example of group libel, the punishment of speech that defames groups of people based on race, creed, color, or sex. Using the ad hoc self-restraintist balancing test, Justice Frankfurter upheld the Illinois group libel law. Though still on the books, Beauharnais has been eviscerated by subsequent opinions such as Brandenburg v. Ohio, Cohen v. California, Texas v. Johnson, and Virginia v. Black. Some critics of the Court鈥檚 commitment to the principle of viewpoint would like to create a First Amendment content-based exception for group libel as a means to protect minority groups from offensive speech that demeans their equal status in society. Before so doing, however, it is worthwhile to consider the dissents of Justice Douglas and Justice Black in this case.
• Cohen v. California, 1971. An important and controlling precedent governing offensive symbolic speech. The Court struck down a California public decency law that punished Cohen for wearing a jacket in a Court house with 鈥淔鈥斺�斺�� the Draft鈥� scrawled on t he back of it. Justice Harlan famously said that 鈥渙ne man鈥檚 vulgarity is another man鈥檚 lyric.鈥� The Court fully embraced the principle of content neutrality in regard to speech. Critics like Justice Robert Bork (1927鈥�2012) see this case as contributing to the coarsening of American society.
• Texas v. Johnson, 1989. Extended First Amendment protection of symbolic speech to flag burning. Citing the Terminiello precedent, Justice Brennan argued that the First Amendment serves its highest function when it 鈥渋nvites dispute, creates a condition of unrest, and dissatisfaction鈥� with the status quo. By favoring patriotic expression while punishing scornful expression about the flag, Texas engaged in impermissible viewpoint-content discrimination.
• Virginia v. Black, 2003. The Court combined two instances of cross burning that were punished under the prima facie provision of Virginia law: a peaceful Klan membership rally at a private residence that was in view of the public highway, and an incident where two juveniles drove a truck into their African American neighbor鈥檚 yard and then burnt a cross on the lawn. Following the principle of viewpoint-content neutrality, the Court extended symbolic speech protection to the burning of the cross in the first case of the Klan rally. Under the different circumstances of the second case, however, cross burning could be banned as a 鈥渢rue threat鈥� without violating the First Amendment. The Court鈥檚 鈥渢rue threat鈥� doctrine is now the controlling doctrine in terms of threatening, harassing, or intimidating speech. Justice Thomas鈥� dissent is noteworthy.
• Snyder v. Phelps, 2011. The infamous Westboro Baptist Church case involved an offensive demonstration at a Marine鈥檚 funeral by members of the Westboro Baptist Church, who believed that God was justly punishing the country for allowing gays in the military. Although Snyder was not gay, followers of the Church staged a protest at his funeral that included signs like 鈥淕od hates fags.鈥� After the funeral, Snyder鈥檚 father viewed the demonstration on TV and sued, recovering millions of dollars in damages for emotional distress. The Court reversed, upholding the right of the Westboro members to express their views, however repugnant and offensive, because the demonstration occurred in a 鈥減ublic forum鈥� and was therefore entitled to heightened protection. Justice Alito鈥檚 stinging dissent is noteworthy.
• Matal v. Tam, 2017. This most recent free speech case involved the effort of Simon Tam, the leader of an Asian American punk rock band, The Slants, to trademark his band鈥檚 name. Fully embracing the derogatory racial connotation of the name, Tam wanted to 鈥渞eclaim鈥� the term by draining its power. He was denied a trademark under the disparagement clause of the Lanham Act of 1946, which prohibits trademarks that 鈥淸consist] of or [comprise] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.鈥� In a rare unanimous decision with far-reaching implications for the protection of offensive speech based on race, gender, or ethnicity, the Court struck down the disparagement clause as a violation of the First Amendment.

Press

• Near v. Minnesota, 1931. The first landmark Supreme Court case involving freedom of the press. A scurrilous anti-Semitic paper that accused state officials of colluding with organized crime was closed down by a public nuisance 鈥済ag law鈥� against anyone engaged in publishing or circulating 鈥渙bscene, lewd, and lascivious鈥� or 鈥渕alicious, scandalous and defamatory鈥� material. The Supreme Court overturned the permanent injunction on grounds of prior restraint. Justice Hughes provided a concise overview of freedom of the press from the time of the Founding and its needed public service as a watchdog to sniff out corruption.
• New York Times v. Sullivan, 1964. The momentous freedom of press case that overturned a libel prosecution against the New York Times for factually inaccurate claims about the abuse of civil rights activists by Alabama authorities. In the case of public figures like Police Commissioner Sullivan, the Court developed the 鈥渁ctual malice鈥� test that places a high burden on them to win libel cases against their critics, even if critics鈥� opinions involve falsehoods and mistaken facts.
• New York Times v. United States, 1971. The famous Pentagon Papers case that struck down as an illegal prior restraint the Nixon鈥檚 administration鈥檚 effort to suppress publication of the incriminating document about the Vietnam War in the interest of national security. Applying the preferred freedom test, the Court tilted the balance in favor of First Amendment unless a 鈥渃ompelling鈥� interest can outweigh it.
• Branzburg v. Hayes, 1972. The case provides a clear example of the conflict between the rights of free speech and due process. After reporting on drug manufacturing and use in Louisville, Kentucky, Branzburg was ordered to testify before a grand jury. He refused, claiming that the First Amendment granted him a privilege as a reporter to remain silent about his sources. The Court disagreed and ruled that the First Amendment does not guarantee such a privilege. The state鈥檚 interest in due process and criminal investigation outweighed the reporter鈥檚 claim to immunity from grand jury testimony on First Amendment grounds.

Association

• NAACP v. Alabama, 1958. An important civil rights and First Amendment case. On the grounds of freedom of association, the Court protected the right of the NAACP to deny the state of Alabama its membership list.
• Roberts v. United States Jaycees, 1984. The Minnesota chapter of the Jaycees admitted women as full members of their organization contrary to the policy of the national organization. The state of Minnesota then brought discrimination charges against the national Jaycees for excluding women. The Court unanimously ruled in favor of Minnesota. In this particular case, the state鈥檚 compelling interest in preventing discrimination outweighed the Jaycees鈥� claim to freedom of association.
• Boy Scouts v. Dale, 2000. James Dale was an openly gay activist who was dismissed as a scoutmaster because his views were inconsistent with the Boy Scout鈥檚 values. Dale sued under a New Jersey accommodations law that prohibited discrimination in public places on the basis of sexual orientation. The Boy Scouts claimed that this law did not apply because it was a private organization. The Court ruled 5-4 in favor of the Boy Scouts鈥� freedom of association.

Educational Setting

• Tinker v. Des Moines, 1969. Perhaps the most famous landmark decision in the educational setting. The Court extended symbolic speech in the classroom to the peaceful wearing of black armbands by students to protest the Vietnam War. Justice Black wrote a stinging dissent warning that the decision would undermine discipline in secondary education. Though it is still on the books, the Court narrowed this ruling in subsequent cases.
• Bethel v. Fraser, 1986. Narrowed the Tinker precedent. At an assembly of around six hundred secondary-school students, Matthew Fraser delivered a speech filled with sexual inuendo and double entendre. He claimed that this speech was protected under the First Amendment, but the Court disagreed, giving high school administrators more leeway to discipline unfavorable messages in the educational setting.
• Morse v. Frederick, 2007. The most recent case governing free speech in the educational setting. During an Olympic Torch Relay procession in Juneau, Alaska, Frederick unfurled a banner that read 鈥淏ONG HiTS 4 JESUS鈥� at an official school event. Justice Roberts decided that the pro-drug message was not protected by the First Amendment. Along with Bethel, Morse has narrowed the Tinker precedent.

Broadcasting and Commercial Speech

• Federal Communications Commission v. Pacifica Foundation, 1978. The case involving comedian George Carlin鈥檚 infamous 鈥淔ilthy Words鈥� monologue鈥攚ords 鈥測ou couldn鈥檛 say on the public airwaves.鈥� After hearing the routine on the radio, a concerned father complained to the FCC, which sent the Pacifica Foundation a letter of reprimand threatening future punishment. The Court ruled in favor of the FCC, thereby permitting them to limit the time, place, and manner of broadcasting. According to Justice Stevens, 鈥渙f all forms of communication, it is broadcasting that has received the most limited First Amendment protection.鈥�
• Central Hudson Gas & Electric Corporation v. Public Service Commission, 1980. A landmark commercial speech case. Although commercial speech, like broadcasting, is afforded less First Amendment protection than political speech, it prevailed in this case over New York State鈥檚 interest in encouraging energy conservation. Writing for the majority, Justice Powell developed a four-part test for judging the First Amendment boundaries of commercial speech. Since the ban on advertising remained in place after the energy crisis had passed, the state鈥檚 interest in energy conservation was not sufficiently warranted under this four-part test.

Obscenity, Violent Video Games, the Internet

• Miller v. California, 1973. The controlling precedent on obscenity that replaced Roth v. United States, 1957. The new obscenity standard of Miller was a state and local standard, not a national one, as under Roth. The Court also replaced the 鈥渦tterly without redeeming social value鈥� of the Memoirs test with the SLAPS test (serious, literary, artistic, political, scientific value).
• Brown v. Entertainment, 2011. Extended First Amendment protection to violent video games for minors. Writing for the majority, Justice Scalia argued that studies did not prove a direct link between viewing violent videos and violent behavior. He argued further that the long-standing tradition of violent depictions in children鈥檚 literature prevent carving out a new content-based exception to the First Amendment that would bar violent video games for minors.
• Reno v. ACLU, 1997. The Supreme Court鈥檚 first foray into the brave new world of the Internet. It struck down the Communications Decency Act, whose aim of protecting children could have been achieved through less restrictive means that did not infringe upon protected speech of adults. The Court鈥檚 recognition of the Internet as a 鈥渄ramatic expansion of [a] new marketplace of ideas鈥� helps to explain why it preferred free speech in this case.