First Amendment: unprotected expression

Question 1

Obscenity

Answer 1

Obscenity is defined by the rule of “S,” i.e., that it must be:

(1) Sexy: erotic and appealing to the prurient interest, as opposed to gore and violence;
(2) Society sick: The content must be patently offensive to the average person in the society, whether the society is narrowly or broadly defined;
(3) Standards: Obscenity must be defined by proper standards that are not vague or overbroad; and
(4) Serious value: The content must lack serious value— i.e., content with artistic, scientific, educational, or political value cannot be held legally obscene.

Question 2

Obscenity: serious value

Answer 2

The court decides whether expression lacks “serious value” based on a national rather than local standard.

Question 3

Obscenity: minors

Answer 3

A lesser legal standard can be applied to minors, but the government cannot ban adult speech simply because it would be inappropriate for minors.

Question 4

Obscenity: child pornography

Answer 4

Child pornography can be prohibited regardless of whether it is legally obscene, and possession even inside the home is punishable.

Amalgamated displays may be banned, but simulated displays may not be banned.

Question 5

Obscenity: land use restrictions

Answer 5

Narrowly drawn ordinances can regulate the zoning of adult theaters but cannot ban them entirely.

Question 6

Incitement

Answer 6

Speech is not protected if it is an incitement to immediate violence.

Question 7

Incitement: fighting words

Answer 7

Generally, all fighting words statutes—which regulate words likely to provoke an immediate breach of the peace—are unconstitutionally vague or overbroad.

Fighting words exceed general vulgarity: They must be aimed or targeted at someone, and that person might hit back.

Question 8

Defamation

Answer 8

It is permissible to prohibit false statement of facts—i.e., not opinion—damaging to a person’s reputation.

But public officials and public figures can recover only on proof of knowing or reckless falsity.

Question 9

Incitement: speech expressing certain viewpoints

Answer 9

Even if a state appears to be enacting a “fighting words” regulation, which can be constitutional to prevent immediate breaches of the peace, such regulations cannot punish only fighting words that express certain viewpoints.

For example, the Supreme Court has struck down an ordinance that applied only to fighting words that insulted or provoked on the basis of race, religion, or gender.

Question 10

Commercial speech: fraudulent speech

Answer 10

Fraudulent commercial speech may actually be prohibited on the basis of content.