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that the Supreme Court had consistently rejected the idea that an “apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea” but added that there are some types of conduct—such as the burning of the American flag, in that case—that are “sufficiently imbued with elements of communication” to fall within the scope of First Amendment protection.54 The challenge remains: How and where to draw that line?
Flag desecration laws vary around the world. Some advanced democracies, such as Israel, Italy, and Switzerland, ban it and provide harsh penalties (including hefty fines and jail time). Others, such as Denmark and Japan, do not forbid the burning of their own flag, but prohibit desecrating flags of other countries. In 2016, President-elect Trump tweeted, “Nobody should be allowed to burn the American flag—if they do, there must be consequences—perhaps loss of citizenship or year in jail.”55
Obscenity
A majority of the Supreme Court has never considered obscenity to be a form of constitutionally protected speech, and the Court has pointed to obscene publications as an exception to the general First Amendment rule of no prior restraint.56 The problem has been defining obscenity. As Justice Potter Stewart famously proclaimed in 1964, “I know it when I see it,” but defining it in concrete terms remains elusive.57
For many years, the Supreme Court used the Hicklin test to determine whether something is obscene. Derived from Regina v. Hicklin, an 1868 case from England, the test made it easy to restrict speech.58 According to the Hicklin test, any material that had merely a tendency “to deprave or corrupt” a child could be outlawed. A publication, such as a book, did not have to be considered as a whole. A single, isolated passage could be taken out of context and used to suppress the book or punish its distributor.
The Supreme Court abandoned the Hicklin test in Roth v. United States (1957). The new Roth test was much more protective of speech. It no longer allowed isolated passages to be taken out of context, and it no longer used children as the baseline for judging whether material was obscene. Now the question was whether an average person “applying contemporary community standards” would find that the “dominant theme of the material, taken as a whole, appeals to the prurient interest.” Thus, a novel that could have been banned using the Hicklin test because of an isolated paragraph that a child might happen to read would now be judged in its entirety by the standards of an average adult.
Still, questions remained. Are “community standards” national or local? How does one measure the “dominant theme” of a work? And what exactly is a “prurient interest”? Justice William Brennan, who wrote the opinion in Roth, tried to answer those questions in subsequent cases, but a majority of the Court could not agree on any single interpretation of the test. To Brennan, community standards meant the standards of “society at large” (a national community standard), and material could be deemed obscene only if, taken as a whole, it was “utterly without redeeming social importance” and did not possess even a “modicum of social value.”59
By the 1970s, the Supreme Court was moving in a more conservative direction. President Richard Nixon, who had criticized the Supreme Court’s obscenity rulings during his 1968 presidential campaign, had the opportunity to replace four justices during his first three years in office, including Chief Justice Warren. The new Court, headed by Chief Justice Warren Burger, grappled with the issue of obscenity in Miller v. California (1973). The resulting Miller test kept some aspects of the Roth test: The relevant audience continued to be the average person, and the material in question still had to be considered as a whole. But community standards were now defined as local rather than national, and material had to lack “serious literary, artistic, political, or scientific value,” thereby rejecting the contention that material had to be utterly without redeeming social importance.
Although the legal definition of obscenity now seems to be limited to hard-core pornography, the Supreme Court has ruled that the broadcast media can be regulated more stringently—partly to assure that scarce airwaves are used in the public interest. As a result, government can ban language and nudity on the broadcast media that may be offensive but is not obscene (for more about government regulation of the airwaves and the Internet, see Chapter 10).
In stark contrast to the lenient attitude toward obscenity in the U.S., Iran has some of the strictest obscenity laws. There, women are not even allowed to be out in public (or depicted on film) without a hijab (a veil that covers the head and most of a woman’s skin). Merely removing a headscarf in public can be punished with up to ten years in prison.60 Nor are women in Iran allowed to dance in public with members of the opposite sex. In 2018, Iranian officials arrested an 18-year-old girl for posting videos of herself on Instagram dancing alone to music (fully clothed, though sometimes without a head scarf) and forced her to deliver a confession on state television (a form of public shaming).61
Iran’s obscenity laws are much stricter than those in the U.S.; it is considered obscene for women to appear without a headscarf known as a hijab. Standards vary not only across the world but within the U.S. Is there anything you would outlaw as obscene that seems to be ordinary in other parts of the country?
ATTA KENARE / AFP / Getty Images
Libel and Slander
The First Amendment protects neither libel (written defamation of character) nor slander (spoken defamation of character), but the Supreme Court has set a high standard for government officials and other public figures who seek damages for defamation. In the landmark 1964 libel case, New York Times v. Sullivan, the Court held that public officials seeking damages for libel must prove not only that the statement is false and damaging but also that it was made with “actual malice”—that is, “made with knowledge that it was false or with reckless disregard of whether it was false or not.”62 In the absence of malice, falsity of the claim is not enough. Subsequent Supreme Court cases extended the actual malice standard to other public figures besides government officials.
Why such an exacting standard for public figures? President Trump, for one, has called the standard “a sham and a disgrace,”63 because it makes it more difficult for him and other public figures to sue, and other liberal democracies such as Canada and Germany have rejected such a high standard.64 But Justice Brennan, who wrote the opinion in New York Times v. Sullivan, defended it, arguing that there is a “profound national commitment” in the United States “to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”65 To allow anything less would interfere with a basic principle of the First Amendment: the free flow of ideas and opinion on matters related to the public interest. It could also interfere with the media’s ability to act as a government watchdog.
libel Written defamation of character, which is not accorded First Amendment protection.
slander Spoken defamation of character, which is not accorded First Amendment protection.
The actual malice standard makes it difficult but not impossible for public figures to win libel suits. Private figures who neither hold public office nor fall into the categories of celebrity that make an individual a public figure are not bound by the actual malice standard and may recover libel damages more easily. Whether one is a public or private figure, certain types of material are generally immune from libel charges. These include the publication of opinion as opposed to fact (such as a restaurant review) and parody (such as political cartoons).
False Advertising
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