A Writer's Guide to the First Amendment: Obscenity, Fighting Words, and Advocating Illegal Conduct



Just how far does the First Amendment go in protecting speech? Quite a ways. But what about obscenity? Or fighting words? Or advocating illegal conduct?

 

Yes, there are some exceptions, but they are are extremely narrow.

 

Take obscenity, for example. Just what makes a book or a movie obscene? The U.S. Supreme Court has a three-part test, and all three parts must be met. The first prong makes the determination of obscenity community-based (meaning that something might be obscene in Birmingham, Alabama but not in Las Vegas, Nevada). The second prong restricts obscenity to hard-core porn. The third requires the work, taken as a whole, to lack serious literary, artistic, political, or scientific value. Since literature and art are in the eye of the beholder, this means that very few things are legally obscene. (See Roth v. U.S., 354 U.S. 476 (1957) and Miller v. California, 413 U.S. 15 (1973).)

 

Then there are fighting words. Words likely to provoke the average person to retaliate in the heat of the moment not protected. However, the other person must be present when the words are uttered and there must be a real possibility of immediate retaliation. Organized marches and protests by hate groups such as the Nazis and the Ku Klux Clan and the Westboro Baptist Church are protected because normal police crowd control procedures are sufficient to prevent retaliation. (See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) and Cox v. Louisiana, 379 U.S. 536 (1965).)

 

Some speech advocating illegal conduct is not protected, either. But again, the exception is narrow. As the Supreme Court has described it, the speech must create a clear and present danger that will bring about substantial evils. Also, the speech must be intended to and likely to incite or produce imminent lawless action. If you know what that means, then you are smarter than I am. I’m waiting to see how the Supreme Court would handle a case where detailed plans for making a bomb are posted on the Internet. (See Schenck v. U.S., 249 U.S. 47 (1919) and Brandenburg v. Ohio, 395 U.S. 444 (1969).)

 

Libel and commercial speech aren’t always protected, either. I’ll cover them later this year.

 

But next month we’ll talk about burning the flag.

 

__________

Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.

 

Melissa Tagg, Here To Stay

By Kelly Bridgewater 

Hello Melissa. It is so nice that you have consented to be interviewed by me, so I can share about your latest book with my readers. Through the Bethany House display at the ACFW conference in September 2013, I wanted to read your first book, Made to Last. After the conference concluded, I purchased your book, enjoying every minute of the tension between Randi and Matthew. I’d like to ask you a few questions that I think would help authors aspiring to write, to grow in their craft.

1.) Do you have a certain type of drink or candy that you drink or eat while writing?

For sure! I almost always have a can of Diet Coke with Lime and a cup of coffee and a glass of water. Which I realize is complete overkill, but if I’m sitting down to write for a long while, I want to have as little reason to get up as possible. So if I’m fully stocked on beverages, that’s one less reason to leave my desk. Haha! I also munch on baby carrots and grapes. And when I’m feeling indulgent, Twizzlers or M&Ms.

2.)    On to more serious matters, what made you a writer, and how did you start?

Well, I have always loved stories. I was your typical bookworm as a kid and at some point, I had the realization that someone was writing these stories that I loved…and I decided someday I’d be one of those people. It wasn’t until fall 2009, though, that I got serious about pursuing writing as a career. I attended a My Book Therapy retreat that fall and it changed the course of my writing, for sure. So though I’ve always written and certainly played around with writing stories long before 2009, that’s really what jump-started my journey to publication.

3.)    Where do you get your ideas?

Everywhere! Which I’m sure most writers will say. J I’ll overhear snippets of conversation or catch a clip of something on TV or hear about a funny situation…and my mind suddenly starts hopscotching toward a story idea. I also get lots of ideas from movies. I’m a huge classic movie nerd so I’m constantly itching to take bits and pieces of those and form my own story. And too, sometimes an idea starts with a simple “What if?” question.

4.)    What tip(s) can you give my readers who are working toward writing a book worthy of being published?

Definitely one of the very best things I ever did for my writing was get involved with My Book Therapy. The coaching is just phenomenal. MBT retreats are worth every penny.

Too, I’d say, get comfortable with revisions. For me, that’s been where the real magic of storytelling happens…when we take the time to dig into our scenes and characters and take things just a little deeper, work just a little harder. And I know everybody says this, but when you’re in the pre-published stage, you don’t have a hard deadline…and that’s a luxury! So I would encourage people to take advantage of that.

Finally, and I don’t mean to sound glib or trite, but I honestly believe God opens publishing doors at the right time. We can trust his timing and his faithfulness. So if possible, just focus on telling the very best story you can. Dig into the craft and enjoy the process and trust him to open the right doors at the right time!

  5.)    Tell us about your upcoming book, Here to Stay, which releases on May 6, 2014.

Well, the idea for Here to Stay was born during the writing of my first book, Made to Last. As I wrote MTL, I started to love this guy, Blake, who was a side character in that story. In that story, he plays the fake husband of my main character. I kept thinking, man, why would this guy basically give up his personal life to pretend to be someone he’s not? I knew I’d have to tell his story next.

6.)    Can you tell us what you’ve got planned for future releases?

Following Here to Stay, my next book releases in spring 2015 and is titled From the Start. It kicks off a new series (the Walker Family series) set in Iowa. The second book in that new series comes out fall 2015. And actually, I’m also writing a novella, probably to be released sometime in early 2015, that will help bridge Here to Stay and the new series. So, I’ve got lots of writing to do these days—which I’m very grateful for!

Thanks, Melissa! This was an awesome interview. You gave some great advice on how to grow as a writer as well as encouraged all who dream us still dream of becoming an author not to give up. Thank you, Melissa Tagg, for taking time to share with us. I anxiously await the release of Here to Stay!

Melissa blogs regularly and loves connecting with readers at http://www.melissatagg.com and on Facebook and Twitter (@Melissa_Tagg.There you can also sign up to receive her newsletter. 

Kelly Bridgewater holds a B.S. in English and a M.A. in Writing from Indiana State University on the completion of a creative thesis titled Fleeting Impressions, which consisted of six original short stories. She has been published in the Indiana State University Literary Journal, Allusions, with her stories titled “Moving On” and “Life Changing Second.” In fall 2011, she presented her essay, Northanger Abbey: Structurally a Gothic Novel, at the Midwestern American Society of 18^th Century Studies Conference. Kelly’s writing explores the ideas of good prevailing over evil in suspense. Kelly and her husband reside with their three boys and two dogs.