Thursday, April 24, 2014

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

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