[SOUND] I'm talking about the types of speech that are unprotected or less protected by the First Amendment. Another category of this is Obscenity. The Supreme Court long has said that obscenity is speech that's unprotected by the first amendment. And would generally the quote is said that sexually oriented speech is less protected by the first amendment. In Roth versus United States in 1957, the Supreme Court said that obscenity is speech that's quote, utterly without redeeming social value, so it shouldn't be regarded as protected by the first amendment. But it's interesting to think about that. Is it utterly without redeeming social value? There's an enormous market for sexually explicit speech. It is entertaining for people. Why isn't that sufficient for it to be protected? Now, once the court says that obscenity is unprotected speech, then the court has to define the line between what's obscene and not obscene. And the court struggled with that. In fact, maybe the low point of this was when a Justice Potter Stewart in a case called Jacobellis versus Ohio said, I can't define it, but I know it when I see it. In Roth, the court defined obscenity as material that appeals to the prurient interest. If you look up the word prurient in the dictionary, it says, that which excites lustful or lascivious thoughts. But isn't there something troubling about defining what's unprotected by the First Amendment by the thoughts that it produces? The current test for what's obscene comes from a case in 1973, Miller versus California. There the court said in order for material to be obscene, it has to meet three requirements. First, it has to appeal to the prurient interest, as defined by contemporary community standards. Notice the Court brings the Roth definition into even the current test. Second, the material has to be patently offensive under law prohibiting obscene material. The court says that any law that prohibits obscene material, federal, state or local has to delineate what depictions. Showing what things seem patently offensive. And finally, the material, taken as a whole, must lack serious redeeming artistic, literary, political, or scientific value. For a time in the 1960s, the courts said so long as any part of the work had social value, that was enough. So those who were producing pornography would have the sex scenes take place on sheets that were an American flag. So they were making a political statement. And the Supreme Court said no. It has to be the work taken as a whole, has serious, redeeming, artistic, literary, political or scientific value and that's determined by standards all across the country. The interesting underlying question is should obscenity be unprotected speech? Obscenity prosecutions right now are more rarer than they used to be. But that tends to change, depending on the ideology of the president, or state or local officials. Now the Supreme Court has also made clear, that child pornography, is a category of unprotected speech. The government can prohibit, punish child pornography even if it doesn't meet the test of obscenity. In fact the court has drawn a distinction between child pornography and obscenity that continues to this day in terms of possession. The court has said a person cannot be punished for having obscene material in his or her home. This case called Stanley versus Georgia. In an opinion by Justice Thurgood Marshall, the court eloquently said there's a First Amendment right to read what you want, watch what you choose in the privacy of your home. But, the court has said, that people can be punished for having child pornography. Even in the possession of their home, there was a case called Osborne versus Ohio. And the punishments for child pornography can be enormous. I sought Supreme Court in the case, Court didn't grant review, of a man in Arizona who was convicted of having 20 pictures of child pornography. In Arizona there's a mandatory minimum sentence of at least ten years in prison, for each picture of child pornography. The sentence are to run consecutively one after the other. There's no possibility of parole or clemency. For just having these 20 pictures. His sentence was 200 years in prison. He'd never been accuse of molesting a child. Never been accused of making child pornography. Just possessing it. And Arizona Supreme Court upheld the sentence and the Supreme Court denied review. So obscenity is unprotected with this right to have it in your house, child pornography's unprotected, and the government can prohibit possession. People often ask a couple of related questions. What about profane or indecent language? There then how does the first amendment treat that? I mean language can't really be obscene in the sense of, it doesn't appeal to the prurient interest, it doesn't turn people on. But what about first amendment protection? Well interestingly here, the Supreme Court has said, that the first amendment generally does protect a right for profane or indecent language. The most famous Supreme Court case is Cohen versus California in 1969. Okay, here I'm going to give my trigger warning. I am about to use a profanity. Case involved a boy in a courtroom in Los Angeles. He had a jacket on his arm, on the back of the jacket were the words, quote, fuck the draft. And the boy was convicted of disturbing the peace, and the case came to the Supreme Court. The boy was represented by the now late, eminent at the time, UCLA professor Melville Nimmer. And before the oral argument, Chief Justice Warren Burger was presiding said he reminds counsel that they were in the Supreme Court and they should use language that's appropriate for the decorum of the Supreme Court. And professor Nimmer within the first couple of minutes it was oral argument repeatedly used the so called F word, Burger glared at him from the bench. Nimmer went out of the courthouse steps after the oral argument, as lawyers always do. And a reporter said, why did you do that? And Nimmer said, If I didn't use the word, then I would have been conceding to the court that there's something wrong about a word. And I had been undermining my entire case. Well in an eloquent opinion by Justice John Marshall Harlan, the Supreme Court ruled in favor of the boy. The Supreme Court said to censor words is to censor ideas. The government can't cleanse the English language to please the most squeamish among us. Now, it's not absolute, as free speech is never absolute. The court has found in some instances, profane and indecent speech can be punished. One example of this is over the broadcast media, over television and radio. What I mean here free television and radio, over the air television and radio. Here there's famous Supreme Court Case FCC v.Pacifica. A radio station in New York played the George Carlin monologue on the seven dirty words. And if you've never heard it, it's worth finding on the internet and listening. It's a wonderful discussion of our hangups about language. It's all about George Carlin saying there's millions in the English language but there's seven that you can't say on television or radio. I am not going to give you a list of the seven dirty words. You'll need to be your own research to get that, but the radio station was punished for playing this monologue of the seven dirty words. I always tell my students that they don't have to memorize the list of the seven dirty words for my final exam. Those often will be the first words that come to mind anyway when they see my exam questions. Will the supreme court rule that the federal communication commission could punish the radio station for broadcasting this monologue. The supreme court said, television radio are uniquely intrusive into the home and accessible to children, so profane and indecent language can be punished. But the Supreme Court has refused to extend that beyond television and radio. There have been cases involving cable, dial-up porn and telephones, the internet. And in all of those the court has rejected attempts to regulate profane and indecent speech. One other the Supreme Court has allowed the government to regulate profane indecent speech is in public schools. Key case here was Bethel's School District versus Fraser in 1986. Matthew Fraser who gave speech to the school assembly nominating another student for position in student government. Fraser speech actually had no profanities but, it was filled with sexual innuendo. As a result, he was suspended from school for a few days, his captain speaking in his graduation as scheduled. Supreme Court ruled in favor of the school and against Fraser. The Supreme Court said schools are responsible for teaching civilized discourse to our youth, schools can punish profane and indecent language. Now this reflects, I think, a trend from the Supreme Court, in recent decades, of being very deferential to schools when they regulate students' speech. In 1969 in Tinker versus Des Moines Board of Education, the Supreme Court eloquently said students do not leave their free speech rights at the school gate. The court said students had a right to wear a black arm band to school to protest the Vietnam War but then every student's speech case before the supreme court since then, student's speech is lost. The most recent was Morse versus Frederick in 2007, the Olympic tour was coming through Juneau Alaska. A school released it's students from class to stay on the sidewalk and watch. A student got together with some friends and unfurled a banner that said, quote, bong hits for Jesus. Just as soon as said he had no idea what that meant but the principal thought that it was a message to encourage illegal drug use. She seized the banner, suspended the student from school. The Supreme Court in a 5-4 decision ruled in favor of the school saying the school had the interest in discouraging illegal drug use, encouraging proper behavior. They could thus prohibit and punish speech that was perceived as encouraging illegal drug use. So that's one area where people have said well, how does obscenity law apply, profane and indecent language. The other interesting question is what about violent speech? I said that obscene speech is unprotected, child pornography's unprotected. What about violent speech? And interestingly in recent years, the Supreme Court has been clear, there is no categorical exception to the First Amendment for violent speech. Now, I have to say as a parent, if my children had to choose, I'd rather they watch a couple making love than people killing each other. But violent speech is protected with the First Amendment. There's a case in 2010 called United States v.Stevens. It involved the federal law that prohibited the sale, distribution, or possession of so called animal crush videos. The Supreme Court eight to one declared the law unconstitutional saying violent speech is still protected by the First Amendment. Well, there's a case couple of years after that, Brown versus Entertainment Merchants. It involved the California law that prohibited the sell or rental to minors or violent video games. Those under 18 could not buy or rent violent video games without parent consent. And the Supreme Court in a seven to two decision declared that unconstitutional. Saying there is no exception to the First Amendment for violence speech. So I've talked first about obscenity incitement, and next we've obscenity and senseless speech. A third category of less protected speech is commercial speech, advertising. The Supreme Court has said the false and deceptive advertising are not protected at all by the First Amendment. The court has said that advertising of illegal activities are not protected at all by the First Amendment. And the court has said that even when it comes to truthful speech, completely honest advertising, the government can regulate if it meets an intermediate scrutiny. Now notice this is a content based restriction on speech. The application of the law depends on the content of the message. But the court has said commercial advertising is less important then say political speech. The court has said there's more need for government regulation to protect the public. So, an example of this was a case in 1995 called Went For It versus Florida Bar. Florida had a law that said, that attorneys could not solicit accident victims whether a states for 30 days after an accident. The Supreme Court upheld the law as constitutional. The court said, this is commercial speech, it's less important than political speech. The court said, the government can regulate commercial speech if it meets an immediate scrutiny. And the court said, this law meets an immediate scrutiny because the government has an important interest in protecting privacy and sensibility and also the court said the means were substantially related to the goal. So I've talked about incitement, I've talked about obscenity, I've talked about commercial speech. A fourth category of unprotected or less protected speech. Is defamatory speech, libel and slander. This is speech that is false, it injures reputation of another. The law has always allowed those were subjected false speech that indulge false reputation to sue for libel if it's written, slander if it's oral and it's called definition. But and perhaps the most important First Amendment case in 1964, in New York Times versus Sullivan. The Supreme Court said the First Amendment limits the ability of the government to allow recovery for defamatory speech. New York times versus Sullivan involved an ad that was published in the New York Times criticizing a racist sheriff in Alabama for the way in which he treated civil rights demonstrators. The law had minor factual inaccuracies, and a jury had found the New York Times liable for defamation, but the Supreme Court and opinion by Justice William Brennan, said that the First Amendment limits recovery for defamation. The Court explained that civil liability in money damages could have justice much of an effect in chilling speech as criminal prosecution. The Court said, there has to be some breathing space, that provides protection for freedom of speech. Even false speech needs protection. And so the Supreme Court has made it very difficult for those who are public officials or running for public office or those who are public figures to recover for defamation. The Court has said, they're going to have to prove with clear and convincing evidence the falsity of the statement and also actual malice, that the statement was false, and the speaker knew it to be false or acted with reckless disregard for the truth. So if somebody is a public official and is a dean of a law school, I'm a public official, or somebody who's a public figure like a celebrity, wants to sue for defamation, they're going to have to prove that the statement was false, and that the speaker knew it was false or acted with reckless disregard of the truth. This reflects the Supreme Court's belief that it's so essential that to be open and robust debate, but those who hold and run for public office, those were public figures, to allow this. Now somebody is suing for defamation, and they're not a public official or public figure. Then they can recover if they can prove the statement is false and that the speaker was negligent, the speaker didn't act with the care that a reasonable speaker should. So defamatory speech is a category of unprotected speech, but there are rules that limit the ability of the government to allow recovery for defamation. Let me talk about one final category of less protected speech, and that's speech that invades privacy. Of course, speech can invade privacy. And here the Supreme Court has said, that the state, the government cannot allow liability for the truthful reporting of information, that's been lawfully obtained from public records. This comes from a couple of cases, where states have laws that prohibited disclosing the identity of a rape victim, without their consent. In each instance the media, lawfully obtain the name of the rape victim and truthfully communicated. In one instance was a broadcast reporter getting the name from court records. In the other, it was a newspaper reporter gaining it from police records available to the public. In both instances, the names were accurately reported. The victims sued for invasion of privacy. The Supreme Court ruled in favor of the press in both cases. The Supreme Court said that it's essential that what's in public records can be accurately reported. There cannot be claims for invasion or privacy, for the truthful reporting of information that's lawfully gained for public records. But the government has fairly broad latitude in deciding what information to make public. The government can restrict its own dissemination of information to protect privacy. Think it might surprise you to know that there's only one area where the Supreme Court has found a First Amendment right, access to the government papers or attend government proceedings. That's for criminal trials. The Supreme Court has said that the press and the public have a First Amendment right to attend most phases of a criminal trial, including the pre-trial cases. But other than this, the government has a broad latitude to restrict its own dissemination information, so as to protect privacy. So what I've done is say, in general, content based restriction on speech must meet strict scrutiny. But there are some exceptions. Categories that are still defined by content, where the government can prohibit or punish or regulate the speech. Incitement, obscenity, child pornography, false and deceptive advertising, advertising illegal activity, defamation in certain circumstances are all either unprotected or less protected expression.
