- Section 1
- Section 2
- Section 3
- Section 4
- Section 5
- Section 6
- Section 7
- Section 8
- Commerce Clause
- Dormant Commerce Clause
- Taxing and Spending Clause
- Necessary and Proper Clause
- Additional Enumerated Powers
- Section 1
- Section 2
- Section 3
- Section 4
- Section 1
- Judicial Review
- Impeachment of Federal Judges
- Justiciability
- Exceptions Clause
- Section 1
- Full Faith and Credit Clause
- Privileges and Immunities Clause
- Extradition Clause
- Fugitive Slave Clause
- New States and Other Property
- Guarantee Clause
Amendment
- Amendment I
- Establishment
- Free Exercise
- Freedom of Speech
- Freedom of the Press
- Assembly and Petition
- Freedom of Religion
- Rights of Criminal Defendants
- Eminent Domain
- Section 1
- The Question of Government Action
- Birthright Citizenship
- Privileges or Immunities Clause
- Procedural Due Process
- Substantive Due Process
- Incorporation of the Bill of Rights
- Equal Protection Clause
First Amendment: Freedom of Speech Less Protected Speech
- Commercial Speech
- Indecent and Profane Speech
- Symbolic Speech
- Speech of Public Employees
The reversal of course by the Court continued in a case decided shortly after Bigelow, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. A law that did not allow pharmacists to advertise the cost of prescription drugs was held to be unconstitutional because speech that “proposes a commercial transaction” is protected expression. Commercial speech that was false or misleading could be prohibited, the court reasoned, but otherwise individuals and society have a strong interest in the free flow of lawful commercial information as another way to have an informed citizenry. The Court noted other forms of speech where the speaker had economic incentives, like negotiations in a labor dispute, which were still protected. The statute was held to be unconstitutional because it discriminated based on content (prices of drugs) without any sufficiently compelling state interest.
Barnes v. Glen Theatre in 1991 featured the Court going even farther, allowing a ban on nudity in dancing because it furthered the governmental interest in “protecting societal order and morality.” This decision was re-affirmed in Erie v. PAP’s A.M, though under slightly different reasoning. Writing for the plurality, Justice O’Connor upheld an ordinance banning nude dancing because the purpose of the ban focused on removing secondary effects like crime rather than the nude dancing itself. Additionally, the Court held that the ban was permissible even without local evidence of nude dancing cause crime, because the town was allowed to rely on the experiences of other areas where the connection had been shown. This portion of the opinion gave local government extensive power to regulate nude dancing by lessening their burden in proving the need for their nude dancing regulations.
Profane or sexually explicit language has been given First Amendment protection by the courts, yet there are notable exceptions, usually determined by the context of how the language is being transmitted and where the audience is. The 1971 opinion in Cohen v. California featured the Court overturning a conviction of disturbing the peace for a man who wore a jacket in a courtroom that had “Fuck the draft” written on it. Justice Harlan, writing for the majority, rejected the arguments made by the government that certain words could be banned for the good of the public and that the ban was justified because the public was a “captive audience”. The Court noted that cursing was a form of expression and that no other alternative may have as strongly communicated the political message of the speaker, and that if the State could ban curse words without any compelling reason their power to restrict speech would seem “inherently boundless.” Harlan also found that the public could not be considered a “captive audience” if their privacy rights weren’t being invaded – the government can regulate speech that may be invading the privacy of a person’s home, but cannot censor speech between people when out in public in order to “protect” them from certain messages.
Exceptions to the First Amendment protection of profane speech have been carved out depending on the context and medium of the speech. Profanity can be regulated in public schools, as demonstrated in Bethel School District No. 403 v. Fraser. The punishment of a student for giving a speech filled with sexual innuendo was upheld as constitutional, because that speech was “wholly inconsistent with the ‘fundamental value’ of public school education.”
Profane speech can be prohibited when broadcast over television and radio as well. In the famous “Seven Dirty Words” case FCC v. Pacifica Foundation, the comedian George Carlin’s monologue featuring repeated swear words was broadcast over the radio uncensored. The Supreme Court held that the Federal Communications Commission could prohibit and punish indecent language broadcast via television or the radio. The opinion followed a rationale related to the “captive audience” argument discussed in Cohen: broadcast media has a unique reach directly into the home, where a person has their greatest privacy rights, and therefore their privacy rights trump the speech rights of an outsider. Particular emphasis was placed on the fact that children are particularly vulnerable to broadcast media, and thus should not have to be exposed to profane language in their own home.
The Court has been much more reluctant to place restrictions on indecent speech over phones, the internet, and cable television, however. Often the reasoning in opinions dealing with these mediums is that there is less of a “captive audience” issue, and that laws restricting indecent speech are too restrictive or not narrowly tailored enough.
In Sable Communications v. FCC, a federal statute banning obscene or indecent telephone communications, aimed to stop phone-sex services, was held to be unconstitutional in regards to its ban of indecent speech. The Court emphasized the lack of a captive audience – the calls were being placed to the services rather than broadcast. Additionally, there was no evidence offered by the government that this law was necessary as the least restrictive way to protect minors.
This least restrictive means analysis pervaded two opinions of the court regarding indecent material on cable television as well. Denver Area Educational Telecommunications Consortium, Inc. v. FCC, decided in 1996, had a divided plurality opinion of the Court on whether three provisions of the Cable Television Consumer Protection and competition Act of 1992 were constitutional. The Court upheld the provision allowing cable operators to prohibit the broadcasting programming that depicts certain sexual content in a “patently offensive manner.” The remaining two provisions: one requiring that this material if allowed must be segregated to a specific channel available only on request; the other banning this material from “public, educational, or governmental channels”, were both struck down. The Court upheld the first provision on the First Amendment rights of the cable operator, allowing them to choose what to broadcast or not. The opinion also emphasized that the provision was actually even less strict than the one upheld in Pacifica – it did not require the prohibition, instead allowing the cable operator to choose. The other two provisions in comparison were mandatory, and the goal behind each – protecting minors and unconsenting adults from having to see indecent material – could have been achieved through the less restrictive means of blocking individually. Additionally the public, educational, and governmental channels were already heavily regulated, and the Court found no compelling need to allow cable operators the ability to censor material on these channels as well.
The problem with Denver was that the opinion involved significant disagreement between the justices over the proper scrutiny standards to apply to cable television, as well as the reasons for allowing or prohibiting content. United States v. Playboy Entertainment Group, Inc. helped clarify the situation in 2000. The decision revolved around a provision of the Cable Act which required cable operators to fully scramble or block sexual programming in order to prevent “signal bleed”, where people receive images of cable channels they are not subscribed to. The Court applied strict scrutiny because by regulating only sexually explicit content, the government was engaging in content-based discrimination. Justice Kennedy, writing for the majority, stated that this meant the statute must be narrowly tailored, and that if “a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.” The Court held that individual blocking of such channels by subscribers is less restrictive than blanket banning by cable operators, and therefore the ban was unconstitutionally restrictive. This opinion is significant because in it, the Court officially uses a strict scrutiny analysis for sexually explicit speech – something it had declined to do in the past.
The first consideration by the Court of indecent material being transmitted over the internet was in the 1997 case Reno v. American Civil Liberties Union. The Communications Decency Act of 1996 made it a criminal offense to transmit obscene or indecent material to minors, or the transmission or displaying of such materials in a way that is available to minors. The Court held the law unconstitutional. Distinguishing this case from Pacifica, the Court noted that the Communications Decency Act was broader and more severe than the regulations under Pacifica – the former having criminal penalties and being in effect at all times. Simultaneously the Court rejected the statute for being too vague, running the real risk of criminalizing content that was not pornographic, such as educational, non-profit material about sexual topics.
