In the last few decades, the Court has tried to walk a fine line between upholding protections for profanity and pornography yet ruling that the 1st Amendment does not protect obscenity. In Miller v. California (1973) the Supreme Court defined “obscenity” as speech that appeals to the “prurient” (sexual) interests, which is patently offensive according to local community standards, and which lacks serious literary, scientific, artistic or political value. However, the obscenity exception has proven almost impossible to define in practice. Moreover, many people have questioned whether we should define obscenity exclusively in terms of sex without broadening the term to include issues like violence.
In Jacobellis v. Ohio (1964), the court held that, while hardcore pornography could be forbidden under state obscenity laws, ordinary pornography was immune. In an honest but unhelpful clarification of the distinction between the two, Justice Stewart admitted that hardcore pornography could perhaps never be intelligibly defined, but “I know it when I see it.”
It should be noted that child pornography does not fall within the category of 1st Amendment protections. This exception is not made because child pornography is obscene; rather, the making of child pornography is always injurious to the child. However, in Ashcroft v. Free Speech Coalition (2002) it was held that “virtual child pornography”—a CGI process wherein no actual child is used in the making of sexually explicit images—was protected speech under the 1st Amendment. The court reached this ruling in spite of the argument that CGI images can be indistinguishable from the real thing, which would make the laws against real child pornography extremely difficult to enforce when realistic images of child pornography were permitted. Congress responded to this ruling by outlawing sexually explicit images of “an identifiable minor.” A more recent United States Appeals Court ruling, United States v. Hotaling (2011), found that digitally morphing the facial images of actual minors onto the bodies of adults in sexually explicit poses was not protected speech under the 1st Amendment.
Commercial speech has value that is protected by the 1st Amendment, but it is somewhat less protected than other speech. For example, government can and does regulate false commercial claims and deceptive advertising. In commercial advertising, misleading claims about a product are subject to legal prohibitions, even though many other forms of false statements of fact are considered protected speech. And commercial advertising may also be subject to disclaimer requirements (as anyone who has seen a drug commercial in recent years can attest).
Public broadcasting also presents a special category. The Federal Communications Commission (FCC) was established by the Communications Act of 1934, and over time it has been charged with regulating the content of radio and television broadcasting. The Court has affirmed that the FCC may forbid indecent or profane language, as well as images, even if the content does not fall under the heading of obscenity in FCC v. Pacifica Foundation (1978). In a recent controversy, the FCC fined CBS $550,000 for a “wardrobe malfunction” that resulted in a fleeting view of Janet Jackson’s breast on a live broadcast of the 2004 Super Bowl halftime show. The Third Circuit Court of Appeals threw out the fine as arbitrary. The court ruled that, since the FCC had previously excused spontaneous and fleeting profanity, their regulations would have to be more specific if they intended to treat images and speech differently. But the case was returned for review by the Supreme Court. Even after review, the Appeals Court upheld its finding that the FCC had acted improperly. In April, 2012, the FCC appealed the case to the Supreme Court.
While most offensive words that might inspire the listener’s desire to fight are protected by the 1st Amendment, “true threats” that can provoke a violent reaction are not protected. The Court has held in Virginia v. Black (2003), while burning a cross deeply offends many people, and might even inspire a desire to fight the cross-burner, it is protected if it is part of a political rally. In such a context, it is core political speech. On the other hand, the court ruled if someone trespasses on the property of his neighbor and burns a cross in the neighbor’s yard, such activity, although clearly meant to express a thought, can be prohibited as a “true threat.”
The 1st Amendment does not protect speech which the speaker intends to cause imminent harm and which is likely to cause such harm. A speaker may publicly advocate the violent overthrow of the government but he may not call in a bomb threat. He may not make warlike remarks that a reasonable person would perceive as a threat of violence. Insults that are addressed to a particular person may be punished as “fighting words,” since they can provoke an imminent and violent reaction.
The right to express profane language was first upheld in a case in which a California resident was convicted of disturbing the peace through “offensive conduct” for wearing a jacket emblazoned with the words “F— the Draft” in a Courthouse. In the resulting Supreme Court challenge, Cohen v. California (1971), Chief Justice Harlan asked whether the state can remove “one particular scurrilous epithet from the public discourse.” He rejected the arguments that “its use is inherently likely to cause violent reaction or . . . that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary.” Harlan cast doubt on the state’s competence to judge the appropriate use of language, arguing that “one man’s vulgarity is another’s lyric.” The ruling did not deny that some speech was offensive, but it denied government the power to lay down any rule that would distinguish offensive speech from any other.
However, a couple of more recent court cases—Papish v. University of Missouri Board of Curators (1973) and Bethel Sch. Dist. v. Fraser (1986)—have nonetheless shown that a student’s speech may be regulated on public school and college campuses. Fraser concluded that a School District may discipline a student for “offensively lewd and indecent speech,” appeals to the 1st Amendment notwithstanding. Chief Justice Burger, writing the lead opinion in Fraser, affirmed that “public education must prepare pupils for citizenship in the Republic.” While free discourse in the classroom is important, it “must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.” Nevertheless, once the student leaves the confines of the school environment, the Court has ruled that profane and offensive language is permissible in almost any other environment.
You do not have a 1st Amendment right to obtain or reveal properly classified information such as secret codes or the blueprints for secret weapons. But even such a common-sense regulation creates controversy. Consider the case of United States v. Progressive (1979), in which a free-lance reporter used public records to figure out the “secret” of the hydrogen bomb. The government tried to stop the publication, but the reporter’s article was eventually published. The fact that the sensitive information was already in the public domain made prosecution very difficult. The same is true today in the Wikileaks case, where the operators of the Wikileaks website have published thousands of pages of confidential diplomatic communications. Wikileaks says that it had nothing to do with stealing the documents–someone (Wilileaks won’t say who) provided the documents to them, as well as to other news outlets, including the New York Times.