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What Does Free Speech Mean?

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

The First Amendment states, in relevant part, that:

“Congress shall make no law...abridging freedom of speech.”

Freedom of speech includes the right:

• Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette , 319 U.S. 624 (1943).
• Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines , 393 U.S. 503 (1969).
• To use certain offensive words and phrases to convey political messages. Cohen v. California , 403 U.S. 15 (1971).
• To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo , 424 U.S. 1 (1976).
• To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council , 425 U.S. 748 (1976);  Bates v. State Bar of Arizona , 433 U.S. 350 (1977).
• To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson , 491 U.S. 397 (1989);  United States v. Eichman , 496 U.S. 310 (1990).

Freedom of speech does not include the right:

• To incite imminent lawless action. Brandenburg v. Ohio , 395 U.S. 444 (1969).
• To make or distribute obscene materials. Roth v. United States , 354 U.S. 476 (1957).
• To burn draft cards as an anti-war protest. United States v. O’Brien , 391 U.S. 367 (1968).
• To permit students to print articles in a school newspaper over the objections of the school administration.  Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988).
• Of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser , 478 U.S. 675 (1986).
• Of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick, __ U.S. __ (2007).

Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation. 

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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Freedom of Speech

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

Freedom of speech—the right to express opinions without government restraint—is a democratic ideal that dates back to ancient Greece. In the United States, the First Amendment guarantees free speech, though the United States, like all modern democracies, places limits on this freedom. In a series of landmark cases, the U.S. Supreme Court over the years has helped to define what types of speech are—and aren’t—protected under U.S. law.

The ancient Greeks pioneered free speech as a democratic principle. The ancient Greek word “parrhesia” means “free speech,” or “to speak candidly.” The term first appeared in Greek literature around the end of the fifth century B.C.

During the classical period, parrhesia became a fundamental part of the democracy of Athens. Leaders, philosophers, playwrights and everyday Athenians were free to openly discuss politics and religion and to criticize the government in some settings.

First Amendment

In the United States, the First Amendment protects freedom of speech.

The First Amendment was adopted on December 15, 1791 as part of the Bill of Rights—the first ten amendments to the United States Constitution . The Bill of Rights provides constitutional protection for certain individual liberties, including freedoms of speech, assembly and worship.

The First Amendment doesn’t specify what exactly is meant by freedom of speech. Defining what types of speech should and shouldn’t be protected by law has fallen largely to the courts.

In general, the First Amendment guarantees the right to express ideas and information. On a basic level, it means that people can express an opinion (even an unpopular or unsavory one) without fear of government censorship.

It protects all forms of communication, from speeches to art and other media.

Flag Burning

While freedom of speech pertains mostly to the spoken or written word, it also protects some forms of symbolic speech. Symbolic speech is an action that expresses an idea.

Flag burning is an example of symbolic speech that is protected under the First Amendment. Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the Reagan administration.

The U.S. Supreme Court , in 1990, reversed a Texas court’s conviction that Johnson broke the law by desecrating the flag. Texas v. Johnson invalidated statutes in Texas and 47 other states prohibiting flag burning.

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

• Obscene material such as child pornography
• Plagiarism of copyrighted material
• Defamation (libel and slander)
• True threats

Speech inciting illegal actions or soliciting others to commit crimes aren’t protected under the First Amendment, either.

The Supreme Court decided a series of cases in 1919 that helped to define the limitations of free speech. Congress passed the Espionage Act of 1917, shortly after the United States entered into World War I . The law prohibited interference in military operations or recruitment.

Socialist Party activist Charles Schenck was arrested under the Espionage Act after he distributed fliers urging young men to dodge the draft. The Supreme Court upheld his conviction by creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, they viewed draft resistant as dangerous to national security.

American labor leader and Socialist Party activist Eugene Debs also was arrested under the Espionage Act after giving a speech in 1918 encouraging others not to join the military. Debs argued that he was exercising his right to free speech and that the Espionage Act of 1917 was unconstitutional. In Debs v. United States the U.S. Supreme Court upheld the constitutionality of the Espionage Act.

Freedom of Expression

The Supreme Court has interpreted artistic freedom broadly as a form of free speech.

In most cases, freedom of expression may be restricted only if it will cause direct and imminent harm. Shouting “fire!” in a crowded theater and causing a stampede would be an example of direct and imminent harm.

In deciding cases involving artistic freedom of expression the Supreme Court leans on a principle called “content neutrality.” Content neutrality means the government can’t censor or restrict expression just because some segment of the population finds the content offensive.

Free Speech in Schools

In 1965, students at a public high school in Des Moines, Iowa , organized a silent protest against the Vietnam War by wearing black armbands to protest the fighting. The students were suspended from school. The principal argued that the armbands were a distraction and could possibly lead to danger for the students.

The Supreme Court didn’t bite—they ruled in favor of the students’ right to wear the armbands as a form of free speech in Tinker v. Des Moines Independent School District . The case set the standard for free speech in schools. However, First Amendment rights typically don’t apply in private schools.

What does free speech mean?; United States Courts . Tinker v. Des Moines; United States Courts . Freedom of expression in the arts and entertainment; ACLU .

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Freedom of Speech

Definition of freedom of speech, what is freedom of speech.

The U.S. has many laws that place limits on speech and other forms of expression, which may be seen as harsh restrictions. These include prohibitions against defamation , slander , copyright violations, and trade secrets, amongst others. American philosopher Joel Feinberg posited what is known as the “offense principle,” which works to prohibit speech that is clearly offensive, or which can harm society as a whole, or a group in particular, such as racial hate speech , or hate speech aimed at someone’s religion.

Freedom of Speech Amendment

In short, the Constitution guarantees that all people may worship who or how they may, but the federal government has no say in the matter, and may not adopt an official stance. There has been some misunderstanding about this “Separation of Church and State” clause, as it does not prohibit people from expressing their religious preferences in public, but only prevents a governmental entity from promoting any religion over another.

Freedom of Speech Quotes

“Freedom of speech is useless without freedom of thought.” – Spiro Agnew

“Those who make conversations impossible, make escalation inevitable.” – Stefan Molyneux

Freedom of Speech Examples in Legal Cases

Gitlow v. new york (1925), brandenburg v. ohio (1969), related legal terms and issues.

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• Freedom of Speech Under the Constitution

One of the most important and contested constitutional rights is the right to free speech in the First Amendment. This prevents the government from imposing criminal penalties or civil sanctions on citizens based on what they say or write. While the constitutional text specifically prevents Congress from infringing on the freedom of speech and the press, the First Amendment applies to all types of government actors at federal, state, and local levels. On the other hand, it does not ban restraints on speech imposed by private entities. For example, a private employer can discipline its employees for their statements.

For First Amendment purposes, "speech" is defined broadly to cover:

• Written and printed text
• Oral statements
• Television and radio broadcasts
• Internet posts
• "Symbolic speech": non-written and non-spoken forms of expression (wearing armbands or uniforms, displaying or burning flags, etc.) that tend to have a political or social message

Regulations based on the content of speech are generally unconstitutional. For example, the government cannot prevent people from stating their views on public issues or criticizing the actions of public officials. This would undermine democracy by preventing citizens from getting access to a full spectrum of information and ideas. The Supreme Court has applied First Amendment protections generously. They may even cover hate speech, blasphemy, vulgar speech, and videogames that contain what might be seen as an offensive level of violence.

Exceptions to the Ban on Content-Based Restrictions

That said, the government has greater discretion to regulate certain narrowly defined types of speech. These include threats to commit a crime and "fighting words," which are insults delivered to the target’s face that are likely to cause a physical fight. "Fighting words" are generally limited to personal attacks and do not include statements that may be more generally offensive, such as political slogans, even if the audience is offended and responds with violence. Child pornography falls outside the First Amendment because it depicts real children engaging in sexual activities, which could encourage child sexual abuse. Pornography involving adults falls outside the First Amendment only if it is extremely explicit, such that it is considered obscene.

The First Amendment may not shield a speaker from a lawsuit for defamation, which involves a false statement that causes harm to the subject. In some cases, the speaker may face criminal penalties, although these are unusual. Public officials bringing defamation cases face a higher bar than private citizens in overcoming First Amendment barriers. They generally must prove that the statement was made with actual malice, which means that the speaker knew that the statement was false or acted with a reckless disregard for the truth.

Free speech protections apply to advertising to a lesser extent, especially when it misleads the public. The First Amendment does not prevent the government from banning misleading advertising, even though the government likely cannot interfere with political speech that may be misleading.

Content-Neutral Restrictions

Regulations on speech that do not involve the content of the speech are more likely to withstand scrutiny under the First Amendment. These are often known as "time, place, and manner" restrictions. Content-neutral regulations might include municipal ordinances controlling the size and placement of signs on government property, or rules that limit the location and size of protests, the hours when they can be held, or the volume of sound-amplifying devices. The government gets the benefit of the doubt regarding these restrictions as long as they are reasonable, since they do not target a certain type of speaker or message. Thus, the government is not taking sides between viewpoints.

Content-neutral restrictions are most likely to be considered unreasonable if they completely ban a certain type of protected expression. For example, the First Amendment probably does not permit a blanket ban on all demonstrations in all public parks, or all distribution of leaflets on all public streets.

Restricted Settings

First Amendment protections apply less strictly in settings over which the government has greater control. These include public schools and government workplaces. Content-based restrictions may be appropriate in these settings to discipline speakers who fail to conform with the norms imposed by their status. The First Amendment does not prevent a government agency from requiring an employee to keep classified information confidential, for example, even though this is technically a content-based restriction on speech. Teachers can be disciplined for speech that encourages students to engage in illegal or inappropriate conduct.

Last reviewed June 2024

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• Introduction
• Which government actions are subject to the First Amendment?
• Freedoms of speech, of the press, of assembly, and to petition

Speech on government property and in government-run institutions

• Related rights
• Free exercise of religion
• The establishment clause

• Why was the Bill of Rights added?
• How was the Bill of Rights added to the U.S. Constitution?
• Does the Bill of Rights apply to the states?

Permissible restrictions on expression

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Despite the broad freedom of expression guaranteed by the First Amendment , there are some historically rooted exceptions. First, the government may generally restrict the time, place, or manner of speech, if the restrictions are unrelated to what the speech says and leave people with enough alternative ways of expressing their views. Thus, for instance, the government may restrict the use of loudspeakers in residential areas at night, limit all demonstrations that block traffic, or ban all picketing of people’s homes.

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Second, a few narrow categories of speech are not protected from government restrictions. The main such categories are incitement, defamation , fraud , obscenity , child pornography , fighting words, and threats. As the Supreme Court held in Brandenburg v. Ohio (1969), the government may forbid “incitement”—speech “directed at inciting or producing imminent lawless action” and “likely to incite or produce such action” (such as a speech to a mob urging it to attack a nearby building). But speech urging action at some unspecified future time may not be forbidden.

Defamatory lies (which are called “libel” if written and “slander” if spoken), lying under oath, and fraud may also be punished. In some instances, even negligent factual errors may lead to lawsuits. Such exceptions, however, extend only to factual falsehoods; expression of opinion may not be punished even if the opinion is broadly seen as morally wrong.

Certain types of hard-core pornography, labeled obscenity by the law, may also be punished, as the Supreme Court held in Miller v. California (1973). Exactly what constitutes obscenity is not clear, but since the 1980s the definition has been quite narrow. Also, obscenities in the sense of merely vulgar words may not be punished ( Cohen v. California [1971]).

Material depicting actual children engaging in sex, or being naked in a sexually suggestive context , is called child pornography and may be punished. Sexually themed material that uses adults who look like children or features hand-drawn or computer-generated pictures of fictional children does not fall within this exception, though some such material might still be punishable as obscenity.

Fighting words—defined as insults of the kind likely to provoke a physical fight—may also be punished, though general commentary on political, religious, or social matters may not be punished, even if some people are so upset by it that they want to attack the speaker. Personalized threats of illegal conduct, such as death threats, may also be punished.

No exception exists for so-called hate speech ( see also hate crime ). Racist threats are unprotected by the First Amendment alongside other threats, and personally addressed racist insults might be punishable alongside other fighting words. But such speech may not be specially punished because it is racist, sexist, antigay, or hostile to some religion.

The preceding sections have dealt with laws that apply even to speakers who are using their own resources on their own property. But the government has considerable—though not unlimited—power to control speech that uses government property.

Government employees, for example, may be fired for saying things that interfere with the employer’s efficiency . Elementary, junior high, and high school students may be disciplined for saying things that risk substantially disrupting the educational process or for using vulgarities at school. If the government gives people money to express the government’s views, it may demand that the money not be used to express things the government does not want to support. Speech on government land or in government buildings usually may be limited, if the government does not discriminate on the basis of the viewpoint of the speech. Additionally, speech by prisoners and by members of the military may be broadly restricted.

Speech on government-owned sidewalks and in parks (often labeled “traditional public forums”) is as protected against government suppression as is speech on the speaker’s own property. The same is true for speech by public-university students, at least when the speech is not part of class discussions or class assignments.

The government has some extra authority to restrict speech broadcast over radio and television. Because the government is considered the owner of the airwaves, it may dictate who broadcasts over the airwaves and, to some extent, what those broadcasters can say. This is why the Supreme Court, in FCC v. Pacifica Foundation (1978), upheld a ban on broadcasting vulgar words, though such words are generally constitutionally protected outside the airwaves. It is also why the Supreme Court, in Red Lion Broadcasting Co. v. FCC (1969), upheld the “ fairness doctrine ,” a regulation of the Federal Communications Commission (FCC) that at the time required broadcasters to give time to people who wanted to present contrary viewpoints. But that extra government authority extended only to radio and television broadcasting and not to other media, including newspapers , cable television , and the Internet . (The FCC abolished the fairness doctrine in 1987.)

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pure speech

Legal Definition of pure speech

Note: Pure speech is accorded the highest degree of protection under the First Amendment to the U.S. Constitution.

Dictionary Entries Near pure speech

Cite this entry.

“Pure speech.” Merriam-Webster.com Legal Dictionary , Merriam-Webster, https://www.merriam-webster.com/legal/pure%20speech. Accessed 4 Jul. 2024.

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Home » Articles » Topic » Legal Terms and Concepts » General Legal Concepts and Theories » Compelled Speech

Compelled Speech

Written by David L. Hudson Jr., published on July 31, 2023 , last updated on July 2, 2024

Illinois Gov. Bruce Rauner gives a thumbs up outside the Supreme Court, Wednesday, June 27, 2018, in Washington after a ruling that a state law requiring non-union government workers to contribute to labor unions that represent them in collective bargaining was a form of compelled speech and unconstitutional. From left are Liberty Justice Center's litigation director Jacob Huebert, plaintiff Mark Janus, Rauner and Liberty Justice Center founder and chairman John Tillman.  (AP Photo/Andrew Harnik)

The compelled speech doctrine sets out the principle that the government cannot force an individual or group to support certain expression. Thus, the First Amendment not only limits the government from punishing a person for his speech, it also prevents the government from punishing a person for refusing to articulate, advocate, or adhere to the government’s approved messages.

West Virginia State Board of Education  is the classic compelled speech case

The Supreme Court’s decision in  West Virginia State Board of Education v. Barnette  (1943) is the classic example of the compelled speech doctrine at work.

In this case, the Court ruled that a state cannot force children to stand, salute the flag, and recite the Pledge of Allegiance. The justices held that school children who are  Jehovah’s Witnesses , for religious reasons, had a First Amendment right not to recite the  Pledge of Allegiance  or salute the U.S. flag.

In oft-cited language, Justice  Robert H. Jackson asserted, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

The Supreme Court’s decision in West Virginia State Board of Education v. Barnette (1943) is the classic example of the compelled speech doctrine at work. In this case, the Court ruled that a state cannot force children to stand, salute the flag, and recite the Pledge of Allegiance. In oft-cited language, Justice Robert H. Jackson asserted, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” In this photo, a sixth grade class in New York salutes the American flag in 1957. In this photo, a sixth grade class in New York salutes the American flag in 1957. (AP photo, used with permission from the Associated Press)

Roberts: Government can’t tell people what they must say

More recently, in  Rumsfeld v. Forum for Academic and Institutional Rights  (2006), Chief Justice  John G. Roberts Jr.  reiterated the essence of the compelled speech principle: “Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.”

The Court also employed the compelled speech doctrine in Wooley v. Maynard (1977) to rule that state officials could not punish a man for covering the state’s motto — “Live Free or Die” — on his license plate. Chief Justice Warren E. Burger  declared, “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’ ”

In more recent years, the Court recognized the reach of the compelled speech principle in  Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston  (1995), in which it ruled that government officials could not force parade organizers to accept a gay and lesbian group and its messages as part of its event. To do so would infringe on the private group’s autonomy and right to disseminate its own messages.

Can government force groups to financially support certain programs?

The compelled speech principle also is at issue when the government attempts to force individuals or groups to financially support certain messages or programs. The Court refers to these as compelled-subsidy cases.

In  Abood v. Detroit Board of Education  (1977), the Court ruled that a teachers’ union had no authority, consistent with the First Amendment, to force dissenting nonmembers to fund activities not germane to the union’s central purpose of collective bargaining.

In a similar vein, in  Keller v. State Bar of California  (1990), the Court ruled that California’s state bar could not force attorneys to contribute to certain political and ideological causes that it supported. “Compulsory dues may not be expended to endorse or advance a gun control or nuclear weapons freeze initiative,” Chief Justice  William H. Rehnquist  wrote for the Court. He added, “At the other end of the spectrum petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected with disciplining members of the Bar or proposing ethical codes for the profession.”

In a more recent 5-4 decision, the Supreme Court overuled  Abood  in 2018 when it found in  Janus v. American Federation of State, County, and Municipal Employees, Council 31  that an Illinois law requiring non-union members to pay agency fees for the union to engage in collective bargaining and related activities amounts to an unconstitutional compelled speech. Under  Abood , the Court had allowed union fees as a condition of employment, but prohibited the use of such fees for political activities.

In 2006 in Rumsfeld v. Forum for Academic and Institutional Rights, the Court ruled that there was no compelled speech problem with a federal law requiring law schools to provide military recruiters the same level of access as other recruiters. “There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse,” Chief Justice Roberts wrote in contrasting this case from a pure compelled speech decision. In this photo, E. Joshua Rosenkranz, second from right, along with H. Kent Greenfeild, right, speaks to the media after arguing before the Supreme Court. Rosenkranz, represented the Forum for Academic and Institutional Rights (FAIR) and a coalition of law schools in the Rumsfeld case. (AP Photo/Lawrence Jackson, used with permission from the Associated Press)

Can government compel private entities to advance its ideas?

Difficulty arises in applying the compelled speech principle when it confronts other principles of First Amendment law, such as the  government speech doctrine , which allows the government to advance its own ideas and messages, sometimes even through private entities.

For example, in  Johanns v. Livestock Marketing Association  (2005), the Court ruled that the government could force beef producers to fund certain generic beef advertisements. The ad said “Funded by America’s Beef Producers,” but the Court reasoned that the overarching message was the government’s, not the individual producers’.

“Citizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech,” Justice  Antonin Scalia  wrote for the Court.

In 2006 in  Rumsfeld v. Forum for Academic and Institutional Rights , the Court ruled that there was no compelled speech problem with a federal law requiring law schools to provide military recruiters the same level of access as other recruiters. Many law schools had argued that the statute forced the law schools to support the military’s controversial “don’t ask, don’t tell” policy toward gays and lesbians in the armed services.

“There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse,” Chief Justice Roberts wrote in contrasting this case from a pure compelled speech decision like Barnette or Wooley.

However in  National Institute of Family and Life Advocates v. Becerra  (2018), the U.S. Supreme Court struck down two provisions of the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), that required clinics that provide health service to pregnant women to include certain notices.  The Court narrowly ruled 5-4 that those notices amounted to content-based, compelled speech in violation of the First Amendment or were an unduly burdensome disclosure requirement.

David L. Hudson, Jr . is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled  Freedom of Speech: Understanding the First Amendment  (Now You Know Media, 2018).  He also is the author of many First Amendment books, including  The First Amendment: Freedom of Speech  (Thomson Reuters, 2012) and  Freedom of Speech: Documents Decoded  (ABC-CLIO, 2017). This article was originally published in 2009.

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• Commercial Speech

What Is Commercial Speech?

Commercial speech is communication (primarily advertising and marketing) that proposes a commercial transaction. It is protected under the First Amendment but is subject to regulation to prevent misleading or harmful practices.

Commercial Speech Explained

Commercial speech, which includes advertising goods and services, is considered less protected under the First Amendment than non-commercial speech due to its potential for deception.

Regulations must directly advance a substantial governmental interest and must not be more extensive than necessary.

The Term Commercial Speech in Different Legal Contexts

Regulatory Environment: Subject to government regulations aimed at preventing false advertising and protecting consumers.

Legal Challenges: The subject of numerous legal challenges questioning the balance between regulation and freedom of speech.

Common Misconceptions About the Meaning of Commercial Speech

A frequent misconception is that all commercial speech enjoys the same level of First Amendment protection as non-commercial speech. In fact, it is more regulated due to its commercial nature.

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Supreme Court Declines to Rule on Tech Platforms’ Free Speech Rights

The justices unanimously returned two cases, which concerned state laws that supporters said were aimed at “Silicon Valley censorship,” to lower courts. Critics had said the laws violated the sites’ First Amendment rights.

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By Abbie VanSickle ,  David McCabe and Adam Liptak

Reporting from Washington

The Supreme Court sidestepped a definitive resolution on Monday in a pair of cases challenging state laws aimed at curbing the power of social media companies to moderate content. The ruling left in limbo an effort by Republicans who had promoted the legislation as a remedy to what they say is a bias against conservatives.

It was the most recent instance of the Supreme Court considering — and then dodging — a major decision on the parameters of speech on social media platforms.

The state laws differ in their details. Florida’s prevents the platforms from permanently barring candidates for political office in the state, while Texas’ prohibits the platforms from removing any content based on a user’s viewpoint.

The justices unanimously agreed to return the cases to lower courts for analysis. Justice Elena Kagan, writing for the majority, noted that neither lower appeals courts had properly analyzed the First Amendment challenges to the Florida and Texas laws.

“In sum, there is much work to do below on both these cases,” Justice Kagan wrote, adding, “But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved.”

Under the narrow ruling, the state laws remain intact, but lower court injunctions also remain in place, meaning both laws continue to be paused.

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It’s Time For Lawmakers to Listen to Courts: Your Law Regulating Online Speech Will Harm Internet Users’ Free Speech Rights

Despite a long history of courts ruling that government efforts to regulate speech online harm all internet users and interfere with their First Amendment rights, state and federal lawmakers continue to pass laws that do just that . Three separate rulings issued in the past week show that the results of these latest efforts are as predictable as they are avoidable: courts will strike down these laws.

The question is, why aren’t lawmakers listening? Instead of focusing on passing consumer privacy legislation that attacks the harmful business practices of the most dominant online services, lawmakers are seeking to censor the internet or block young people from it. Instead of passing laws that increase competition and help usher in a new era of online services and interoperability , lawmakers are trying to force social media platforms to host specific viewpoints. 

Recent decisions by the Supreme Court and two federal district courts underscore how these laws, in addition to being unconstitutional, are also bad policy. Whatever the good intentions of lawmakers, laws that censor the internet directly harm people’s ability to speak online, access others’ speech, remain anonymous, and preserve their privacy.

The consistent rulings by these courts should send a clear message to lawmakers considering internet legislation: it’s time to focus on advancing legislation that solves some of the most pressing privacy and competition problems online without censoring users’ speech. Those proposals have the benefit of both being constitutional and addressing many of the harms people—both adults and young people—experience online. Let’s take a look at each of these cases.

Court Puts Mississippi Law on Hold, Highlights KOSA’s Unconstitutionality

A federal court on Monday blocked Mississippi from enforcing its children’s online safety law ( House Bill 1126 ), ruling that it violates the First Amendment rights of adults and young people. The law requires social media services to verify the ages of all users, to obtain parental consent for any minor users, and to block minor users from being exposed to “harmful” material.

EFF filed a friend-of-the-court brief in the case that highlighted the many ways in which the law burdened adults’ ability to access lawful speech online, chilled anonymity online, and threatened their data privacy.

The district court agreed with EFF, ruling that “the Act requires all users (both adults and minors) to verify their ages before creating an account to access a broad range of protected speech on a broad range of covered websites. This burdens adults’ First Amendment rights.”

The court’s ruling also demonstrates the peril Congress faces should it advance the Kids Online Safety Act . Both chambers have drafted slightly different versions of KOSA, but the core provision of both bills would harm internet users — especially young people —by censoring a large swath of protected speech online.

EFF has previously explained in detail why KOSA will block everyone’s ability to access information online in ways that violate the First Amendment. The Mississippi court’s ruling earlier this week confirms that KOSA is unconstitutional, as the law contains similar problematic provisions.

Both Mississippi HB 1126 and KOSA include a provision that imposes liability on social media services that fail to “prevent and mitigate” exposing young people to several categories of content that the measures deem to be harmful. And both bills include a carveout that says a service will not face liability if a young person independently finds the material or searches for it.

The district court ruled that these “monitoring-and-censorship requirements” violated the First Amendment. First, the court found that the provision created restrictions on what content could be accessed online and thus triggered strict review under the First Amendment. Next, the court found that the provision fell far short of complying with the First Amendment because it doesn’t effectively prevent the harms to minors that Mississippi claims justify the law.

In short, if lawmakers believe they have a compelling interest in blocking certain content from minors online, the carveout provisions of KOSA and HB 1126 undercut their claims that such information is inherently harmful to minors. The First Amendment prevents lawmakers from engaging in such half-measures precisely because those proposals chill vast amounts of lawful speech while being inherently ineffective at addressing the harms that animated enacting them in the first place.

Another aspect of the court’s decision putting HB 1126 on hold should also serve as a warning to KOSA’s proponents. The Mississippi court ruled that the state law also ran afoul of the First Amendment because it treated online services differently based on the type of content they host.

HB 1126 broadly regulates social media services that allow users to create and post content and interact with others. But the law exempts other online services that “provide a user with access to news, sports, commerce, online video games or content primarily generated or selected by the digital service provider.”

The district court ruled that HB 1126’s exemption of certain online services based on the content subjected the law to the First Amendment’s strict requirements when lawmakers seek to regulate the content of lawful speech.

“The facial distinction in H.B. 1126 based on the message the digital service provider conveys, or the more subtle content-based restriction based upon the speech’s function or purpose, makes the Act content-based, and therefore subject to strict scrutiny,” the court wrote.

KOSA contains a similar set of carveouts in its definitions. The bill would apply to online services that are likely to be used by minors but exempts news and sports websites and related services. KOSA will thus similarly be subjected to strict review under the First Amendment and, as EFF has said repeatedly, will likely fall far short of meeting the Constitution’s requirements.

Indiana Court Reaffirms That Age-Verification Schemes Violate the First Amendment

An Indiana federal court’s decision to block the state’s age-verification law highlights the consensus that such measures violate the First Amendment because they harm adults’ ability to access protected speech and burden their rights to anonymity and privacy. The decision casts significant doubt on similar bills being contemplated across the country, including in California .

The Indiana law requires an online service in which more than one-third of the content hosted includes adult sexual materials to verify the ages of its users and block young people from that material. The age-verification mandate required services to obtain government-issued identification from users or to have users submit to invasive methods to verify their age, such as providing personal information or facial recognition.

The court ruled that Indiana’s law was unconstitutional because it placed immense burdens on adults’ rights to access “a significant amount of speech protected by the First Amendment.” In particular, the law would require general-purpose websites that serve a variety of users and host a variety of content to implement age verification for all users if a third of the content featured sexual material.

As a result, users who visited that site but never accessed the sexual content would still have to verify their age. “Indeed, the Act imposes burdens on adults accessing constitutionally protected speech even when the majority of a website contains entirely acceptable, and constitutionally protected, material,” the court wrote.

Conversely, young people who have a First Amendment right to access the majority of non-sexual content on that site would not be able to.

The Indiana court’s decision is in keeping with more than two decades’ worth of rulings by the Supreme Court and lower courts that have found age-verification laws to be unconstitutional. What’s remarkable is that, despite this clearly developed law, states across the country continue to try to pass these laws.

Lawmakers should heed these courts’ consistent message and work on finding other ways to address harms to children online, such as by passing comprehensive data privacy laws , rather than continuing to pass laws that courts will strike down.

Supreme Court Confirms that Laws Targeting Content Moderation Will Face First Amendment Challenges, But Data Privacy and Competition Laws are Fair Game

The Supreme Court’s ruling this week in a pair of cases challenging states’ online content moderation laws should also serve as a wakeup call to lawmakers. If a state or Congress wants to pass a law that requires or coerces an online service to modify how it treats users’ speech, it will face an uphill battle to being constitutional.

Although EFF plans to publish an in-depth analysis of the decision soon, the court’s decision confirms what EFF has been saying for years: the First Amendment limits lawmakers ability to dictate what type of content online services host. And although platforms often make bad or inconsistent content moderation decisions, users are best served when private services—not the government—make those choices.

Importantly, the Supreme Court also confirmed something else EFF has long said: the First Amendment is not a barrier to lawmakers enacting measures that target dominant social media companies’ invasive privacy practices or their anti-competitive behavior.

Comprehensive consumer data privacy laws that protect all internet users are both much needed and can be passed consistent with the First Amendment.

The same is true for competition laws. Lawmakers can pass measures that instill greater competition for users and end the current companies’ dominance. Also, laws could allow for the development and growth of a variety of third-party services that can interoperate with major social media companies and provide options for users that the major companies do not.

The Supreme Court’s decision thus reinforces that lawmakers have many paths to addressing many of the harms occurring online, and that they can do so without violating the First Amendment. EFF hopes that lawmakers will take up this opportunity, and we continue to be ready to help lawmakers pass pro-competition and consumer data privacy laws.

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Although public discussion of political affairs is at the core of the First Amendment , the guarantees of speech and press are broader. “We do not accede to appellee’s suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right.” 1 Footnote Winters v. New York, 333 U.S. 507, 510 (1948) . Illustrative of the general observation is the fact that “[m]usic, as a form of expression and communication, is protected under the First Amendment .” Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) . Nude dancing is also. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 564 (1991) . The right to impart and to receive “information and ideas, regardless of their social worth . . . is fundamental to our free society.” 2 Footnote Stanley v. Georgia, 394 U.S. 557, 564 (1969) . Indeed, it is primarily with regard to the entertaining function of expression that the law of obscenity is concerned, as the Court has rejected any concept of “ideological” obscenity. 3 Footnote Winters v. New York, 333 U.S. 507 (1948) ; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ; Commercial Pictures Corp. v. Regents, 346 U.S. 587 (1954) ; Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959) . The last case involved the banning of the movie Lady Chatterley’s Lover on the ground that it dealt too sympathetically with adultery. “It is contended that the State’s action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.” Id. at 688–89 . However, this function is not the reason that obscenity is outside the protection of the First Amendment , although the Court has never really been clear about what that reason is.

Adjudication over the constitutional law of obscenity began in Roth v. United States , 4 Footnote 354 U.S. 476 (1957) . Heard at the same time and decided in the same opinion was Alberts v. California , involving, of course, a state obscenity law. The Court’s first opinion in the obscenity field was Butler v. Michigan, 352 U.S. 380 (1957) , considered infra . Earlier the Court had divided four-to-four and thus affirmed a state court judgment that Edmund Wilson’s Memoirs of Hecate County was obscene. Doubleday & Co. v. New York , 335 U.S. 848 (1948) . in which the Court in an opinion by Justice Brennan settled in the negative the “dispositive question” “whether obscenity is utterance within the area of protected speech and press.” 5 Footnote Roth v. United States, 354 U.S. 476, 481 (1957) . Justice Brennan later changed his mind on this score, arguing that, because the Court had failed to develop a workable standard for distinguishing the obscene from the non-obscene, regulation should be confined to the protection of children and non-consenting adults. See Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) . The Court then undertook a brief historical survey to demonstrate that “the unconditional phrasing of the First Amendment was not intended to protect every utterance.” All or practically all the states that ratified the First Amendment had laws making blasphemy or profanity or both crimes, and provided for prosecutions of libels as well. It was this history that had caused the Court in Beauharnais to conclude that “libelous utterances are not within the area of constitutionally protected speech,” and this history was deemed to demonstrate that “obscenity, too, was outside the protection intended for speech and press.” 6 Footnote 354 U.S. at 482–83 . The reference is to Beauharnais v. Illinois, 343 U.S. 250 (1952) . “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people . . . . All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” 7 Footnote 354 U.S. at 484 . There then followed the well-known passage from Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) . It was objected that obscenity legislation punishes because of incitation to impure thoughts and without proof that obscene materials create a clear and present danger of antisocial conduct. But because obscenity was not protected at all, such tests as clear and present danger were irrelevant. 8 Footnote 354 U.S. at 486 , also quoting Beauharnais v. Illinois, 343 U.S. 250, 266 (1952) .

“However,” Justice Brennan continued, “sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g. , in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press . . . . It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.” 9 Footnote 354 U.S. at 487, 488 . The standard that the Court thereupon adopted for the designation of material as unprotected obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 10 Footnote 354 U.S. at 489 . The Court defined material appealing to prurient interest as “material having a tendency to excite lustful thoughts,” and defined prurient interest as “a shameful or morbid interest in nudity, sex, or excretion.” 11 Footnote 354 U.S. at 487 n.20 . A statute defining “prurient” as “that which incites lasciviousness or lust” covers more than obscenity, the Court later indicated in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985) ; obscenity consists in appeal to “a shameful or morbid” interest in sex, not in appeal to “normal, healthy sexual desires.” Brockett involved a facial challenge to the statute, so the Court did not have to explain the difference between “normal, healthy” sexual desires and “shameful” or “morbid” sexual desires.

In the years after Roth , the Court struggled with many obscenity cases with varying degrees of success. The cases can be grouped topically, but, with the exception of those cases dealing with protection of children, 12 Footnote In Butler v. Michigan, 352 U.S. 380 (1957) , the Court unanimously reversed a conviction under a statute that punished general distribution of materials unsuitable for children. Protesting that the statute “reduce[d] the adult population of Michigan to reading only what is fit for children,” the Court pronounced the statute void. Narrowly drawn proscriptions for distribution or exhibition to children of materials which would not be obscene for adults are permissible, Ginsberg v. New York, 390 U.S. 629 (1968) , although the Court insists on a high degree of specificity. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968) ; Rabeck v. New York, 391 U.S. 462 (1968) . Protection of children in this context is concurred in even by those Justices who would proscribe obscenity regulation for adults. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113 (1973) (Justice Brennan dissenting). But children do have First Amendment protection and government may not bar dissemination of everything to them. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–14 (1975) (in context of nudity on movie screen). See also FCC v. Pacifica Foundation, 438 U.S. 726, 749–50 (1978) ; Pinkus v. United States, 436 U.S. 293, 296–98 (1978) . unwilling adult recipients, 13 Footnote Protection of unwilling adults was the emphasis in Rowan v. Post Office Dep’t, 397 U.S. 728 (1970) , which upheld a scheme by which recipients of objectionable mail could put their names on a list and require the mailer to send no more such material. But, absent intrusions into the home, FCC v. Pacifica Foundation, 438 U.S. 726 (1978) , or a degree of captivity that makes it impractical for the unwilling viewer or auditor to avoid exposure, government may not censor content, in the context of materials not meeting constitutional standards for denomination as pornography, to protect the sensibilities of some. It is up to offended individuals to turn away. Erznoznik v. City of Jacksonville, 422 U.S. 205, 208–12 (1975) . But see Pinkus v. United States, 436 U.S. 293, 300 (1978) (jury in determining community standards must include both “'sensitive’ and ‘insensitive’ persons” in the community, but may not “focus[ ] upon the most susceptible or sensitive members when judging the obscenity of materials . . .” ). and procedure, 14 Footnote The First Amendment requires that procedures for suppressing distribution of obscene materials provide for expedited consideration, for placing the burden of proof on government, and for hastening judicial review. Additionally, Fourth Amendment search and seizure law has been suffused with First Amendment principles, so that the law governing searches for and seizures of allegedly obscene materials is more stringent than in most other areas. Marcus v. Search Warrant, 367 U.S. 717 (1961) ; A Quantity of Books v. Kansas, 378 U.S. 205 (1964) ; Heller v. New York, 413 U.S. 483 (1973) ; Roaden v. Kentucky, 413 U.S. 496 (1973) ; Lo-Ji Sales v. New York, 442 U.S. 319 (1979) ; see also Walter v. United States, 447 U.S. 649 (1980) . Scienter—that is, knowledge of the nature of the materials—is a prerequisite to conviction, Smith v. California, 361 U.S. 147 (1959) , but the prosecution need only prove the defendant knew the contents of the material, not that he knew they were legally obscene. Hamling v. United States, 418 U.S. 87, 119–24 (1974) . See also Vance v. Universal Amusement Co., 445 U.S. 308 (1980) (public nuisance injunction of showing future films on basis of past exhibition of obscene films constitutes impermissible prior restraint); McKinney v. Alabama, 424 U.S. 669 (1976) (criminal defendants may not be bound by a finding of obscenity of materials in prior civil proceeding to which they were not parties). None of these strictures applies, however, to forfeitures imposed as part of a criminal penalty. Alexander v. United States, 509 U.S. 544 (1993) (upholding RICO forfeiture of the entire adult entertainment book and film business of an individual convicted of obscenity and racketeering offenses). Justice Kennedy, dissenting in Alexander , objected to the “forfeiture of expressive material that had not been adjudged to be obscene.” Id. at 578 . these cases are best explicated chronologically.

Manual Enterprises v. Day 15 Footnote 370 U.S. 478 (1962) . upset a Post Office ban upon the mailing of certain magazines addressed to homosexual audiences, but resulted in no majority opinion of the Court. Nor did a majority opinion emerge in Jacobellis v. Ohio , which reversed a conviction for exhibiting a motion picture. 16 Footnote 378 U.S. 184 (1964) . Without opinion, citing Jacobellis , the Court reversed a judgment that Henry Miller’s Tropic of Cancer was obscene. Grove Press v. Gerstein, 378 U.S. 577 (1964) . Jacobellis is best known for Justice Stewart’s concurrence, contending that criminal prohibitions should be limited to “hard-core pornography.” The category “may be indefinable,” he added, but “I know it when I see it, and the motion picture involved in this case is not that.” Id. at 197 . The difficulty with this visceral test is that other members of the Court did not always “see it” the same way; two years later, for example, Justice Stewart was on opposite sides in two obscenity decisions decided on the same day. A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U.S. 413 (1966) (concurring on basis that book was not obscene); Mishkin v. New York, 383 U.S. 502, 518 (1966) (dissenting from finding that material was obscene). Chief Justice Warren’s concurrence in Roth 17 Footnote Roth v. United States, 354 U.S. 476, 494 (1957) . was adopted by a majority in Ginzburg v. United States , 18 Footnote 383 U.S. 463 (1966) . Pandering remains relevant in pornography cases. Splawn v. California, 431 U.S. 595 (1977) ; Pinkus v. United States, 436 U.S. 293, 303–04 (1978) . in which Justice Brennan for the Court held that in “close” cases borderline materials could be determined to be obscene if the seller “pandered” them in a way that indicated he was catering to prurient interests. The same five-Justice majority, with Justice Harlan concurring, the same day affirmed a state conviction of a distributor of books addressed to a sado-masochistic audience, applying the “pandering” test and concluding that material could be held legally obscene if it appealed to the prurient interests of the deviate group to which it was directed. 19 Footnote Mishkin v. New York, 383 U.S. 502 (1966) . See id. at 507–10 for discussion of the legal issue raised by the limited appeal of the material. The Court relied on Mishkin in Ward v. Illinois, 431 U.S. 767, 772 (1977) . Unanimity was shattered, however, when on the same day the Court held that Fanny Hill , a novel at that point 277 years old, was not legally obscene. 20 Footnote A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U.S. 413 (1966) . The prevailing opinion again restated the Roth tests that, to be considered obscene, material must (1) have a dominant theme in the work considered as a whole that appeals to prurient interest, (2) be patently offensive because it goes beyond contemporary community standards, and (3) be utterly without redeeming social value. 21 Footnote 383 U.S. at 418 . On the precedential effect of the Memoirs plurality opinion, see Marks v. United States, 430 U.S. 188, 192–94 (1977) .

After the divisions engendered by the disparate opinions in the three 1966 cases, the Court over the next several years submerged its differences by per curiam dispositions of nearly three dozen cases, in all but one of which it reversed convictions or civil determinations of obscenity. The initial case was Redrup v. New York , 22 Footnote 386 U.S. 767 (1967) . in which, after noting that the cases involved did not present special questions requiring other treatment, such as concern for juveniles, protection of unwilling adult recipients, or proscription of pandering, 23 Footnote 386 U.S. at 771 . the Court succinctly summarized the varying positions of the seven Justices in the majority and said: “[w]hichever of the constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand . . . .” 24 Footnote 386 U.S. at 770–71 . The majority was thus composed of Chief Justice Warren and Justices Black, Douglas, Brennan, Stewart, White, and Fortas. And so things went for several years. 25 Footnote See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 82–83 & n.8 (1973) (Justice Brennan dissenting) (describing Redrup practice and listing 31 cases decided on the basis of it).

Changing membership on the Court raised increasing speculation about the continuing vitality of Roth ; it seemed unlikely the Court would long continue its Redrup approach. 26 Footnote See United States v. Reidel, 402 U.S. 351 (1971) (federal prohibition of dissemination of obscene materials through the mails is constitutional); United States v. Thirty-seven Photographs, 402 U.S. 363 (1971) (customs seizures of obscene materials from baggage of travelers are constitutional). In Grove Press v. Maryland State Bd. of Censors, 401 U.S. 480 (1971) , a state court determination that the motion picture “I Am Curious (Yellow)” was obscene was affirmed by an equally divided Court, Justice Douglas not participating. And Stanley v. Georgia, 394 U.S. 557, 560–64, 568 (1969) , had insisted that Roth remained the governing standard. The change when it occurred strengthened the powers of government, federal, state, and local, to outlaw or restrictively regulate the sale and dissemination of materials found objectionable, and developed new standards for determining which objectionable materials are legally obscene.

At the end of the October 1971 Term, the Court requested argument on the question whether the display of sexually oriented films or of sexually oriented pictorial magazines, when surrounded by notice to the public of their nature and by reasonable protection against exposure to juveniles, was constitutionally protected. 27 Footnote Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ; Alexander v. Virginia , 408 U.S. 921 (1972) . By a five-to-four vote the following Term, the Court in Paris Adult Theatre I v. Slaton adhered to the principle established in Roth that obscene material is not protected by the First and Fourteenth Amendment s even if access is limited to consenting adults. 28 Footnote 413 U.S. 49 (1973) . Chief Justice Burger for the Court observed that the states have wider interests than protecting juveniles and unwilling adults from exposure to pornography; legitimate state interests, effectuated through the exercise of the police power, exist in protecting and improving the quality of life and the total community environment, in improving the tone of commerce in the cities, and in protecting public safety. It does not matter that the states may be acting on the basis of unverifiable assumptions in arriving at the decision to suppress the trade in pornography; the Constitution does not require in the context of the trade in ideas that governmental courses of action be subject to empirical verification any more than it does in other fields. Nor does the Constitution embody any concept of laissez faire, or of privacy, or of Millsean “free will,” that curbs governmental efforts to suppress pornography. 29 Footnote 413 U.S. at 57, 60–62, 63–64, 65–68 . Delivering the principal dissent, Justice Brennan argued that the Court’s Roth approach allowing the suppression of pornography was a failure, that the Court had not and could not formulate standards by which protected materials could be distinguished from unprotected materials, and that the First Amendment had been denigrated through the exposure of numerous persons to punishment for the dissemination of materials that fell close to one side of the line rather than the other, but more basically by deterrence of protected expression caused by the uncertainty. Id. at 73 . “I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendment s prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” Id. at 113 . Justices Stewart and Marshall joined this opinion; Justice Douglas dissented separately, adhering to the view that the First Amendment absolutely protected all expression. Id. at 70 .

In Miller v. California , 30 Footnote 413 U.S. 15 (1973) . the Court prescribed standards by which unprotected pornographic materials were to be identified. Because of the inherent dangers in undertaking to regulate any form of expression, laws to regulate pornography must be carefully limited; their scope is to be confined to materials that “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” 31 Footnote Miller v. California, 413 U.S. 15, 27 (1973) . The Court stands ready to read into federal statutes the standards it has formulated. United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7 (1973) (Court is prepared to construe statutes proscribing materials that are “obscene,” “lewd,” “lascivious,” “filthy,” “indecent,” and “immoral” as limited to the types of “hard core” pornography reachable under the Miller standards). For other cases applying Miller standards to federal statutes, see Hamling v. United States, 418 U.S. 87, 110–16 (1974) (use of the mails); United States v. Orito, 413 U.S. 139 (1973) (transportation of pornography in interstate commerce). The Court’s insistence on specificity in state statutes, either as written by the legislature or as authoritatively construed by the state court, appears to have been significantly weakened, in fact if not in enunciation, in Ward v. Illinois, 431 U.S. 767 (1977) . The law “must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” 32 Footnote Miller v. California , 413 U.S. at 24 . The standard that a work must be “utterly without redeeming social value” before it may be suppressed was disavowed and discarded. In determining whether material appeals to a prurient interest or is patently offensive, the trier of fact, whether a judge or a jury, is not bound by a hypothetical national standard but may apply the local community standard where the trier of fact sits. 33 Footnote It is the unprotected nature of obscenity that allows this inquiry; offensiveness to local community standards is, of course, a principle completely at odds with mainstream First Amendment jurisprudence. See, e.g. , Texas v. Johnson, 491 U.S. 397 (1989) ; R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) . Prurient interest and patent offensiveness, the Court indicated, “are essentially questions of fact.” 34 Footnote 413 U.S. at 30–34 . “A juror is entitled to draw on his knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law.” Hamling v. United States, 418 U.S. 87, 104 (1974) . The holding does not compel any particular circumscribed area to be used as a “community.” In federal cases, it will probably be the judicial district from which the jurors are drawn, id. at 105–106 . Indeed, the jurors may be instructed to apply “community standards” without any definition being given of the “community.” Jenkins v. Georgia, 418 U.S. 153, 157 (1974) . In a federal prosecution for use of the mails to transmit pornography, the fact that the legislature of the state within which the transaction takes place has abolished pornography regulation except for dealings with children does not preclude permitting the jurors in the federal case to make their own definitions of what is offensive to contemporary community standards; they may be told of the legislature’s decision but they are not bound by it. Smith v. United States, 431 U.S. 291 (1977) . By contrast, the third or “value” prong of the Miller test is not subject to a community standards test; instead, the appropriate standard is “whether a reasonable person would find [literary, artistic, political, or scientific] value in the material, taken as a whole.” 35 Footnote Pope v. Illinois, 481 U.S. 497, 500–01 (1987) .

The Court in Miller reiterated that it was not permitting an unlimited degree of suppression of materials. Only “hard core” materials were to be deemed without the protection of the First Amendment , and the Court’s idea of the content of “hard core” pornography was revealed in its examples: “(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” 36 Footnote Miller v. California, 413 U.S. 15, 25 (1973) . Quoting Miller 's language in Hamling v. United States, 418 U.S. 87, 114 (1974) , the Court reiterated that it was only “hard-core” material that was unprotected. “While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is ‘patently offensive’ within the meaning of the obscenity test set forth in the Miller cases.” Referring to this language in Ward v. Illinois, 431 U.S. 767 (1977) , the Court upheld a state court’s power to construe its statute to reach sadomasochistic materials not within the confines of the Miller language. Subsequently, the Court held that a publication was not obscene if it “provoked only normal, healthy sexual desires.” To be obscene it must appeal to “a shameful or morbid interest in nudity, sex, or excretion.” 37 Footnote Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985) . The Court has also indicated that obscenity is not be limited to pictures; books containing only descriptive language may be suppressed. 38 Footnote Kaplan v. California, 413 U.S. 115 (1973) .

First Amendment values, the Court stressed in Miller , “are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” 39 Footnote 413 U.S. at 25 . But the Court had conferred on juries as triers of fact the determination, based upon their understanding of community standards, whether material was “patently offensive.” Did not this virtually immunize these questions from appellate review? In Jenkins v. Georgia , 40 Footnote 418 U.S. 153 (1974) . the Court, while adhering to the Miller standards, stated that “juries [do not] have unbridled discretion in determining what is ‘patently offensive.’” Miller was intended to make clear that only “hard-core” materials could be suppressed and this concept and the Court’s descriptive itemization of some types of hardcore materials were “intended to fix substantive constitutional limitations, deriving from the First Amendment , on the type of material subject to such a determination.” The Court’s own viewing of the motion picture in question convinced it that “[n]othing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the ‘patently offensive’ element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment.” 41 Footnote 418 U.S. at 161 . The film at issue was Carnal Knowledge . But, in a companion case, the Court found that a jury determination of obscenity “was supported by the evidence and consistent with” the standards. 42 Footnote Hamling v. United States, 418 U.S. 87 (1974) . In Smith v. United States, 431 U.S. 291, 305–06 (1977) , the Court explained that jury determinations in accordance with their own understanding of the tolerance of the average person in their community are not unreviewable. Judicial review would pass on (1) whether the jury was properly instructed to consider the entire community and not simply the members’ own subjective reaction or the reactions of a sensitive or of a callous minority, (2) whether the conduct depicted fell within the examples specified in Miller , (3) whether the work lacked serious literary, artistic, political, or scientific value, and (4) whether the evidence was sufficient. The Court indicated that the value test of Miller “was particularly amenable to judicial review.” The value test is not to be measured by community standards, the Court later held in Pope v. Illinois, 481 U.S. 497 (1987) , but instead by a “reasonable person” standard. An erroneous instruction on this score, however, may be “harmless error.” Id. at 503 .

The decisions from the Paris Adult Theatre and Miller era were rendered by narrow majorities, 43 Footnote For other five-to-four decisions of the era, see Marks v. United States, 430 U.S. 188 (1977) ; Smith v. United States, 431 U.S. 291 (1977) ; Splawn v. California, 431 U.S. 595 (1977) ; and Ward v. Illinois, 431 U.S. 767 (1977) . but nonetheless have guided the Court since. In addition, the Court’s willingness to allow some regulation of non-obscene but sexually explicit or “indecent” expression reduces the importance (outside the criminal area) of whether material is classified as obscene.

Even as to materials falling within the constitutional definition of obscene, the Court has recognized a limited private, protected interest in possession within the home, 44 Footnote Stanley v. Georgia, 394 U.S. 557 (1969) . unless those materials constitute child pornography. Stanley v. Georgia was an appeal from a state conviction for possession of obscene films discovered in appellant’s home by police officers armed with a search warrant for other items which were not found. The Court reversed, holding that the mere private possession of obscene materials in the home cannot be made a criminal offense. The Constitution protects the right to receive information and ideas, the Court said, regardless of their social value, and “that right takes on an added dimension” in the context of a prosecution for possession of something in one’s own home. “For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.” 45 Footnote 394 U.S. at 564 . Despite the unqualified assertion in Roth that obscenity was not protected by the First Amendment , the Court observed, it and the cases following were concerned with the governmental interest in regulating commercial distribution of obscene materials. Roth and the cases following that decision are not impaired by today’s decision, the Court insisted, 46 Footnote 394 U.S. at 560–64, 568 . but in its rejection of each of the state contentions made in support of the conviction the Court appeared to be rejecting much of the basis of Roth . First, there is no governmental interest in protecting an individual’s mind from the effect of obscenity. Second, the absence of ideological content in the films was irrelevant, since the Court will not draw a line between transmission of ideas and entertainment. Third, there is no empirical evidence to support a contention that exposure to obscene materials may incite a person to antisocial conduct; even if there were such evidence, enforcement of laws proscribing the offensive conduct is the answer. Fourth, punishment of mere possession is not necessary to punishment of distribution. Fifth, there was little danger that private possession would give rise to the objections underlying a proscription upon public dissemination, exposure to children and unwilling adults. 47 Footnote 394 U.S. at 565–68 .

Stanley 's broad rationale has been given a restrictive reading, and the holding has been confined to its facts. Any possible implication that Stanley was applicable outside the home and recognized a right to obtain pornography or a right in someone to supply it was soon dispelled. 48 Footnote Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65–68 (1973) . Transportation of unprotected material for private use may be prohibited, United States v. Orito, 413 U.S. 139 (1973) , and the mails may be closed, United States v. Reidel, 402 U.S. 351 (1971) , as may channels of international movement, United States v. Thirty-seven Photographs, 402 U.S. 363 (1971) ; United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973) . The Court has consistently rejected Stanley 's theoretical underpinnings, upholding morality-based regulation of the behavior of consenting adults. 49 Footnote Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65–70 (1973) (commercial showing of obscene films to consenting adults); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (regulation of non-obscene, nude dancing restricted to adults). Also, Stanley has been held inapplicable to possession of child pornography in the home, the Court determining that the state interest in protecting children from sexual exploitation far exceeds the interest in Stanley of protecting adults from themselves. 50 Footnote Osborne v. Ohio, 495 U.S. 103 (1990) . Apparently for this reason, a state’s conclusion that punishment of mere possession is a necessary or desirable means of reducing production of child pornography will not be closely scrutinized. 51 Footnote 495 U.S. at 109–10 .

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Remarks by President   Biden on the Supreme Court’s Immunity   Ruling

7:45 P.M. EDT

THE PRESIDENT:  Good evening. 

The presidency is the most powerful office in the world.  It’s an office that not only tests your judgment, perhaps even more importantly it’s an office that can test your character because you not only face moments where you need the courage to exercise the full power of the presidency, you also face moments where you need the wisdom to respect the limits of the power of the office of the presidency.

This nation was founded on the principle that there are no kings in America.  Each — each of us is equal before the law.  No one — no one is above the law, not even the president of the United States. 

With today’s Supreme Court decision on presidential immunity, that fundamentally changed.  For all — for all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a president can do. 

This is a fundamentally new principle, and it’s a dangerous precedent because the power of the office will no longer be constrained by the law, even including the Supreme Court of the United States.  The only limits will be self-imposed by the president alone.

This decision today has continued the Court’s attack in recent years on a wide range of long-established legal principles in our nation, from gutting voting rights and civil rights to taking away a woman’s right to choose to today’s decision that undermines the rule of law of this nation.

Nearly four years ago, my predecessor sent a violent mob to the U.S. Capitol to stop the peaceful transfer of power.  We all saw it with our own eyes.  We sat there and watched it happen that day.  Attack on the police.  The ransacking of the Capitol.  A mob literally hunting down the House Speaker, Nancy Pelosi.  Gallows erected to hang the vice president, Mike Pence.  I think it’s fair to say it was one of the darkest days in the history of America.

Now the man who sent that mob to the U.S. Capitol is facing potential criminal conviction for what happened that day.  And the American people deserve to have an answer in the courts before the upcoming election.  The public has a right to know the answer about what happened on January 6th before they ask to vote again this year.

Now, because of today’s decision, that is highly, highly unlikely.  It’s a terrible disservice to the people of this nation.

So, now — now the American people have to do what the Court should have been willing to do but would not.  The America people have to render a judgment about Donald Trump’s behavior.  The American people must decide whether Donald Trump’s assault on our democracy on January 6th makes him unfit for public office in the highest office in the land.  The American people must decide if Trump’s embrace of violence to preserve his power is acceptable. 

Perhaps most importantly, the American people must decide if they want to entrust the president — once again, the presidency to Donald Trump, now knowing he’ll be even more emboldened to do whatever he pleases whenever he wants to do it.

You know, at the outset of our nation, it was the character of George Washington, our first president, that defined the presidency.  He believed power was limited, not absolute, and that power would always reside with the people — always.

Now, over 200 years later, with today’s Supreme Court decision, once again it will depend on the character of the men and women who hold that presidency that are going to define the limits of the power of the presidency, because the law will no longer do it.

I know I will respect the limits of the presidential power, as I have for three and a half years.  But any president, including Donald Trump, will now be free to ignore the law. 

I concur with Justice Sotomayor’s dissent today.  She — here’s what she said.  She said, “In every use of official power, the president is now a king above the law.  With fear for our democracy, I dissent,” end of quote.

So should the American people dissent.  I dissent. 

May God bless you all.  And may God help preserve our democracy.  Thank you.  And may God protect our troops.

7:49 P.M. EDT

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Biden warns Supreme Court presidential immunity ruling is 'dangerous precedent'

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Reporting by Andrea Shalal; Additional reporting by Kanishka Singh and Eric Beech; Writing by Jeff Mason; Editing by Heather Timmons, Cynthia Osterman and Jamie Freed

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