Paramount among the first 10 Amendments to the Constitution—known as the Bill of Rights—is the 1st Amendment, which states, “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 to peaceably assemble, and to petition the Government for a redress of grievances.” Clearly, one of Congress’s interests in ratifying this Amendment was to protect speech, but just what constitutes “speech” anyway? Does the liberty to speak freely also necessarily include the license to express oneself in any manner one chooses, no matter how obscene or socially unacceptable? Many contend that the spirit of the 1st Amendment requires a lack of any sort of state censorship for obscene expression, but this is not the case. By the standards of the original meaning of the text of the 1st Amendment and the history of the common law precedent interpreting it after its ratification, the 1st Amendment in letter and spirit is fully compatible with state and federal restrictions on obscene material.
The Original Meaning of the 1st Amendment
The wording of the Amendment itself strongly implies that the 1st Amendment does not protect certain forms of speech. First, the text of the 1st Amendment states that “Congress shall make no law…abridging the freedom of speech…” (emphasis added). This limited restriction of the powers of Congress, the federal legislature, and notably left open the opportunity for state governments to exercise their police powers to pass laws to regulate the health, safety, morals, and general welfare of their citizens. The power of states to do this had long been recognized under the British common law, and continues to be recognized today in constitutional law. These state police powers are also implicitly enshrined in the 10th Amendment to the Constitution, which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” So, the text of the 1st Amendment—as well as the 10th Amendment—seems to create no issue for state police power restrictions on forms of speech like obscenity as a matter of regulating morals.
Second, the use of the phrase “the freedom of speech” (emphasis added) in the 1st Amendment might also suggest the assumed existence of certain exemptions to Freedom of Speech, like obscenity, even on the federal level. As Justice John Paul Stevens once argued, the use of the article “the” to qualify “freedom of speech” implies that the Framers wanted to exempt certain categories of speech from 1st Amendment protection. If this were not the case, Stevens argues, it would lead to the absurd conclusion that, say, lying under oath would be protected by the 1st Amendment. Legal journalist Anthony Lewis also points out that “the” can be interpreted to limit the application of the 1st Amendment to forms of speech that are understood to be protected.
Even though what was understood to be protected and unprotected was not always clear at the outset of the 1st Amendment’s enactment, focusing on the historical controversies over what forms of speech are and are not protected can shed some light on the status of speech restrictions. Shortly after its enactment, the only significant controversy over what speech was exempt was in regards to the Alien and Sedition Acts that banned seditious libel. The Amendment’s author, James Madison, argued that the Acts were an unconstitutional violation of the freedom of speech. On the other hand, Chief Justice John Marshall believed the Acts—while politically impractical—were consistent with the Constitution.
The fact that the only early significant 1st amendment controversy was over bans on political speech shows that political speech was originally the primary target of the Amendment. Consequently, some forms of non-political speech were likely not regarded as protected by the 1st Amendment at that time. Political speech as a concept was of prime importance to many of the Founding Fathers. So, if they considered that some political speech might be outside the bounds of 1st Amendment protection, then how much more so are forms of apolitical speech?
Therefore, it seems that the original meaning of the 1st Amendment focused primarily on political speech, meaning the protection of non-political speech by the Amendment was, at best, protected by its fringe. While some argue that the Constitutional meaning is not fixed, and that latter judicial decisions and interpretations must bear some weight in 1st Amendment jurisprudence, even if this is correct, the history of case law regarding obscenity still agrees that certain non-political forms of speech are not protected by the Amendment on either a federal or state level.
Obscenity and 1st Amendment Case Law
During the first half of the 1800s, the commercial transaction of obscene materials was widely restricted by most states in the U.S. In the latter half of the century, the Comstock Act of 1873 (named after famed Postal Inspector, which is surprisingly not an oxymoron, and moralist Anthony Comstock) criminalized the postal distribution of materials deemed obscene. This legislation was upheld by the Supreme Court in Rosen v. United States after the Court adopted the standard for obscenity used in the British case, Regina v. Hicklin, which established The Hicklin test for obscenity. This test defined material as obscene if the material tended “to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” Under this standard, several works of literature deemed obscene were banned well into the early 20th century. Then, in United States v. One Book Called Ulysses, the court ruled that James Joyce’s Ulysses was not obscene, and set the stage for a new standard that would take a more holistic approach to defining obscenity.
In Roth v. United States, while the Supreme Court still found that obscenity did not merit 1st Amendment protection, this decision replaced the Hicklin test with the Roth test, which asked “whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest.” However, this new test did not stop the Court from stumbling over what constitutes obscenity. Concurring with the majority opinion in Jacobellis v. Ohio that a particular film was not obscene, in which Justice Potter Stewart famously quipped, regarding obscene pornography, “I know it when I see it.”
The Supreme Court’s standard for what constitutes obscenity was yet again refined in Miller v. California, which created the present standard governing obscenity: the Miller test . The Miller test augmented Roth by setting forth a three-pronged test:
- “Whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to the ‘prurient interest.’”
- “Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.”
- “Whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.”
While the Court has occasionally scaled-back what sorts of obscenity can be restricted — such as privately owned obscene material in Stanley v. Georgia — the Miller test is still the reigning judicial precedent for obscenity. Even though the Supreme Court has from time to time wavered on its definition of obscenity, what exactly constitutes obscenity, and whether private possession of obscenity can be restricted, obscenity itself has always been recognized as an unprotected class of speech.
One might argue that the inconsistency of the Court’s definition of obscenity and the value of free expression weigh in favor of overturning the obscenity exemption. Nonetheless, the evidence on the original meaning of the text of the 1st Amendment as well as the past history of obscenity cases support the notion that obscenity exemptions do not contradict the freedom of speech enshrined in that Amendment. The 1st Amendment protects the liberty of expression, but not the licentious expression that is devoid of any societal value and only serves to offend community norms.