Obscenity and indecency -- Commercial speech -- Restrictions on compensation
Obscenity and indecency
Obscenity falls outside the protection of the First Amendment. Although absolute bans on publication generally have been declared unconstitutional, the Supreme Court has permitted government regulation of the sale and distribution of obscene materials. The Court has consistently required that those regulations be narrowly defined to cover materials judged obscene by contemporary community standards.
In November 1997, the U.S. Court of Appeals in New York City (2nd Cir.) held that the Department of Defense could enforce a 1996 law barring sexually explicit magazines and videotapes from being sold or rented on military bases because it was a reasonable attempt to protect “the military’s image and core values.”35
The Supreme Court has decided a number of cases regarding federal statutes that seek to protect minors from pornography. In Reno v. ACLU, the Court struck down criminal restrictions on internet speech contained in the Communications Decency Act where less restrictive means existed and the prohibitions were not narrowly tailored to serve a compelling government interest.36 The Court has upheld the criminal prohibition of child pornography, but criminal prohibitions that extend to conduct involving virtual depictions of children engaged in sexually explicit conduct have turned on the specific scope and language of the laws.37
The courts have struck down enforcement of the Child Online Protection Act (“COPA”), which prohibits an individual from knowingly posting material that is harmful to minors on the Web for commercial purposes. In 2002, the Supreme Court held that the COPA did not violate the First Amendment merely by using “community standards” to identify “material that is harmful to minors.”38 But two years later, the Court upheld an injunction on enforcement of the COPA, concluding that the government had not rebutted that less restrictive alternatives to the statute, such as filtering software, exist.39The District Court subsequently issued a permanent injunction on enforcement of COPA, which was affirmed on appeal.40 The Supreme Court has also upheld the Child Internet Protection Act, which ties federal funding for libraries to the use of filtering software.41
Commercial speech
Advertising and other communications proposing commercial transactions between the speaker and listener are not fully protected by the First Amendment. The U.S. Supreme Court has said that commercial speech may be restrained if it is false, misleading or advertises unlawful activity. Any governmental restraint must advance a substantial public interest and must not be more extensive than necessary to serve that interest.42
The Supreme Court struck down a 1956 Rhode Island law that banned the advertisement of retail liquor prices in 1996, holding that the state’s interest in discouraging alcohol consumption did not justify the broad restriction on truthful commercial speech. In the decision, the Supreme Court not only agreed that commercial speech merited substantial First Amendment protection, it enhanced that protection. According to the high court, blanket bans on commercial speech that deprive the public of accurate price information must be reviewed with “special care” and “rarely survive constitutional review.” The court also stated that unless commercial speech regulations target false, misleading or coercive advertising, or require disclosure of information that will help avoid misleading advertising, strict First Amendment scrutiny should apply.43
Restrictions on compensation
Restrictions on receiving compensation for speech have been viewed by the courts as prior restraints on the speech itself.
The U.S. Supreme Court in 1991 struck down the New York “Son of Sam” law that required confiscation of any payments to criminals for telling stories about their crimes.44
However, the Supreme Judicial Court of Massachusetts upheld prohibition on the sale of a story imposed as a condition of probation for Katherine A. Power, a fugitive for 23 years before turning herself in to the authorities. It found that her First Amendment rights were not violated because she was not prohibited from telling her story as long as she received no payment for it.45
Notes:
35. General Media Communications Inc. v. Cohen, 131 F.3d 273 (2nd Cir. 1997), cert. denied, 118 S.Ct. 2694 (1998).
36. Reno v. ACLU, 521 U.S. 844 (1997)
37. Compare Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (holding that provisions of the Child Pornography Prevention Act of 1996 criminalizing virtual depictions of children that appear to be engaged in sexually explicit conduct were unconstitutional because they prohibit a substantial amount of protected expression) with United States v. Williams, 553 U.S. 285 (2008) (upholding the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, which criminalized the pandering and solicitation of child pornography and purported child pornography).
38. Ashcroft v. ACLU, 535 U.S. 564 (2002).
39. Ashcroft v. ACLU, 542 U.S. 656 (2004)
40. See ACLU v. Mukasey, 534 F.3d 181 (3rd Cir. 2008), cert. denied, 129 S. Ct. 1032 (2009)
41. United States v. American Library Ass’n, Inc., 539 U.S. 194 (2003)
42. See, e.g., Central Hudson v. Public Serv. Comm’n, 447 U.S. 557 (1980); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).
43. 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996).
44. Simon & Schuster v. New York Crime Victims Bd., 502 U.S. 105 (1991); accord Bouchard v. Price, 694 A.2d 670 (R.I. 1997) (holding that the state Criminal Royalties Distribution Act, a “Son of Sam” law, violates the First Amendment because its focus on profits derived from expressive activity was unrelated to the state’s interest in transferring the proceeds of crime from criminals to victims).
45. Massachusetts v. Power, 650 N.E.2d 87 (Mass. 1995).
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