Freedom of Speech

Laws that limit inciting or provocative speech, often called fighting words, or offensive expressions such as PORNOGRAPHY, are subject to STRICT SCRUTINY. It is well established that the government may impose content regulations on certain categories of expression that do not merit First Amendment protection. To illustrate this point, the Court stated in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942),"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise constitutional problems."

With the increase of activity in cyberspace, individuals can distribute questionable speech throughout the U.S. and the world. In Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002), a federal appeals court ruled that an anti-abortion web site was not protected by the First Amendment. The web site posted photos, names, addresses, and other information pertaining to ABORTION providers, their family members, and others who were perceived as supporting abortion rights. Although neither the site nor the posters made explicit threats against the abortion providers, violence at clinics that provided abortions had followed poster distribution in the past. Planned Parenthood sued the group under the Freedom of Access to Clinic Entrances Act of 1994 (FACE), 18 U.S.C. § 248, and other laws. The trial judge instructed the jury that if the defendants' statements were "true threats," the First Amendment would not protect them. The jury awarded the plaintiff a multimillion-dollar verdict. The Ninth Circuit stated that a jury could conclude that the postings constituted a true threat under FACE, which removed any First Amendment protection for the defendants.

The Court has also upheld laws that regulate speech activity if those laws do not limit the content of speech and impose only an indirect burden on freedom of speech. In such cases, the Court applies a less stringent test and balances the individual's free speech interests against the government's interest that is furthered by the law in question. In O'Brien v. United States, 393U.S. 900, 89 S. Ct. 63, 21 L. Ed. 2d 188 (1968), the Court held that a statute prohibiting the destruction of draft cards did not violate the First Amendment, because the government's interest in maintaining a viable selective-service pool outweighed the statute's incidental infringement of free expression.

Since the 1980s, a number of laws have been passed that attempt to regulate or ban "hate speech," which is defined as utterances, displays, or expressions of racial, religious, or sexual bias. The U.S. Supreme Court has generally invalidated such laws on the ground that they infringe First Amendment rights. In R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992), the Court invalidated the city of St. Paul's hate-crime ordinance, ruling that it unconstitutionally infringed free speech. The defendant in that case had been prosecuted for burning a cross on the lawn of an African-American family's residence.

The Minnesota Supreme Court held that the ordinance was limited to restricting conduct that amounted to Chaplinksky "fighting words." Therefore, the ordinance was not impermissibly content-based because it was "narrowly tailored" to further the "compelling governmental interest in protecting the community against bias-motivated threats to public safety and order." The U.S. Supreme Court disagreed. Justice ANTONIN SCALIA, in his majority opinion, wrote that, even assuming that the cross burning was proscribable under the "fighting words" doctrine, the ordinance was, on its face, unconstitutional. It violated the First Amendment because it prohibited "otherwise permitted speech solely on the basis of the subjects the speech addresses." Scalia agreed that the government may constitutionally proscribe content such as LIBEL, but that it may not proscribe only libel that is critical of the government. In Scalia's view, the unprotected features of "fighting words" are their "nonspeech" element of communication. Thus, fighting words are like a noisy sound truck: each is a mode of speech, and both can be used to convey an idea, but neither has a claim on the First Amendment. The government cannot, however, regulate fighting words or a sound truck based on "hostility-or favoritism-towards the underlying message expressed."

In addition, the ordinance was not over-broad but underinclusive. The content limitation was impermissible because it displayed "the city council's special hostility towards the particular biases thus singled out." An ordinance not restricted "to the favored topics" would have the same effect the city desired, but without the discrimination against unpopular views. Justice Scalia also noted that the city could have prosecuted the defendant under traditional CRIMINAL LAW statutes, including ARSON, trespass, and terroristic threats. In his view, the city had other means to address the problem "without adding the First Amendment to the fire."

This decision did not end the debate over HATE CRIMES. The Court took up the issue again in Virginia v. Black, 538 U.S. 343, 123 S. Ct.1536. 155 L. Ed.2d 535 (2003). This case also involved a cross burning aimed at terrorizing an African-American family. A Virginia criminal statute had outlawed cross burning "on the property of another, a highway or other public place …with the intent of intimidating any person or group." In a 6-3 decision, the Court upheld the statute. It emphasized that the First Amendment would protect some types of cross burnings, such as one held at a political rally. However, when the cross burning was targeted at individuals for the purposes of criminal intimidation, freedom of speech would not protect the cross burners.

Like fighting words, materials that are judged obscene are not protected by the First Amendment. The three-part Miller test stands as the yardstick for differentiating material that is merely offensive and therefore protected by the First Amendment, from that which is legally obscene and therefore subject to restriction (MILLER V. CALIFORNIA, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]). The Miller test determines that material is obscene if (1) the average person, applying contemporary community standards, would find that it appeals to shameful or morbid sexual interests; (2) it depicts or describes patently offensive sexual conduct; and (3) it lacks serious literary, artistic, political, or scientific value.

The Seventh Circuit Court of Appeals ruled in Kendrick v. American Amusement Machine Association, 244 F.3d 572 (7th Cir. 2001) that a city ordinance that prohibited minors from playing violent or sexually explicit video arcade games was unconstitutional. The court noted that the city had not sought to regulate video games because they were "offensive" under Miller. Rather, the ordinance premised its restriction on the belief that violent fantasy video games led to real-world harm. The appeals court found no real difference between the content of the allegedly "violent" video games and generally available, unrestricted literature that depicted the same level of violence. They were both examples of "a children's world of violent adventures." The court, therefore, found that the ordinance impermissibly restricted minors' freedom of expression without any offsetting justification.