This is part three of an examination of the limits of freedom of expression established by key Supreme Court decisions.  Please read the first part here and the second part here.

Richard Nixon, who tried (in vain) to prevent the publishing of the Pentagon Papers by the New York Times.

Seven years after the Sullivan case, the New York Times found itself in another landmark case related to freedom of the press.  In 1971, the New York Times received classified intelligence that detailed American involvement and decision making in Vietnam from 1945-1967.  On June 13^th of the same year, the New York Times published selections of the document in their Sunday edition.  Days later, the New York Times received a district court order to stop further publishing of the Pentagon Papers (similar requests were also made to the Washington Post, who also began publishing articles related to the papers).  The Nixon Administration felt that publishing the papers would interfere with national security interests. Despite the fact that many justices felt it would be against the nation’s best interest to allow publishing the papers, they ruled 6-3 in favor of the New York Times, allowing them to continue to publish the Pentagon Papers.[1] While the justices felt the articles could be damaging, they followed the precedent regarding prior restraint set in the Near case.  In writing his concurring opinion, Justice Potter stated that prior restraint of publications should be used only when it will “result in direct, immediate, and irreparable damage to our Nation or its people.”[2] Since there was no proof that anything of that nature would result, freedom of the press as guaranteed by the First Amendment trumped the Administration’s security concerns.

The Supreme Court has had several cases that have had to deal with obscenity and pornography.  While the court has been careful to not permit outright censorship, it has placed limits on the distribution of materials that have been deemed obscene. The courts first case involving pornography was Roth v. United States (1957).  The previous year, Samuel Roth was accused of mailing out obscene images as advertising for his book store.  While he was found guilty of a federal obscenity statue, Roth appealed his decision believing that it was a violation of his freedom of expression.  When his case was appealed to the Supreme Court, its ruling was combined with Alberts v. California (1957), a case where a book seller was arrested for selling obscene books.  The court ruled 6-3 in favor of the United States and California in both decisions.  In the majority opinion, Justice Brennan wrote that it was the opinion of the court that pornographic images and obscene material were not protected by either the freedom of speech nor press. Reiterating that the First Amendment had limitations, he stated lewd material is utterly without redeeming social importance” and wrote the definition of obscenity as “whether to the average person applying contemporary community standards, the dominant theme of the material is taken as a whole appeals to the prurient interest.”[3]  Therefore, the decision of what was made obscene was declared as something that most people would find objectionable.  Sixteen years later, the U.S. Supreme Court would modify the definition of obscenity, but they would still keep the “contemporary community standards’ test to define what is or is not protected speech.

In Jacobellis v. Ohio (1964), the court ruled that a French art film named “The Lovers” was not obscene and reversed a conviction and fine for a theater manager levied by the state of Ohio. In his concurring opinion, Potter Stewart wrote that he felt only “hard-core pornography” should be constitutionally limited.[4]  However, it was the case Miller v. California (1973) which modified the Roth decision and created the current precedent for obscenity and pornography.  Marvin Miller was found guilty of violating California’s obscenity law by mass mailing pornographic material as advertisement for his adult video and bookstore.(more descriptive)  The court upheld Miller’s conviction in a narrow 5-4 ruling.  Using the “contemporary community standards” qualifier of the Roth case, the justices added additional qualifiers that work that was either “patently offensive,” “lacks serious literary, artistic, political, or scientific value,” or “utterly without redeeming value” also qualified as obscene.[5]   While the court has struggled to give an explicit definition of obscenity or pornography, its rulings have given both the state and federal government leeway in deciding what pornography is by the Miller test.

While the Supreme Court has established rulings and precedents to govern its decisions regarding constitutional limits to the First Amendment, new technology and recent events have established the possibility of future battles related to Speech and the Press.  With the growth of the internet, there still exists a great deal of question as to what should or should not be allowed on the World Wide Web.  Applying the Miller test, many Americans might find material that is freely available to be objectionable, thus qualifying as obscenity and not protected speech.  However, in two different rulings – Reno v. ACLU (1997) and Ashcroft v. ACLU (2002) – the Supreme Court has struck down attempts by the Federal Government to filter Internet content.  With names like Child Online Protection Act (SOPA) laws that censor the Internet have broad support among conservative and family-oriented groups.  However, free speech advocates allege that, “the government has no right to censor speech on the Internet, and it cannot reduce adults to hearing and seeing only speech that the government considers suitable for children.”[6]

How and where censorship is used on the internet is something that must be decided by the U.S. Supreme Court in a case by case basis.  While general censorship has been rejected, it has been allowed in certain cases.  The case US v. ALA (2003) allowed the American Library Association to filter web browsing on library computers.  In addition, active military often find their internet restricted overseas.  Topics ranging from bullying and hate speech to concern over the rights of bloggers are topics that are hotly debated by contemporary Americans.  While court decisions exist regarding the internet, use of the internet has grown exponentially since many key court rulings regarding internet content were established.  In addition, recent attempts to protect copyright infringement such as the Stop Online Privacy Act (SOPA) and Protect IP Act (PIPA) led to massive online protests which helped kill both bills.[7]  With issues of online piracy and the dearth of material that can be viewed as objectionable by community standards, battles over freedom of speech will continue to happen in America.

Equal concerns also exist in regard to Freedom of the Press in America.  Despite the fact that we highly regard our First Amendment freedoms, The United States was rated 47^th highest on Reporters without Borders Press Freedom Index of 2011/2012.  According to the organization, the United States ranked low due to “the many arrests of journalists covering Occupy Wall Street protests.”[8]  Judith Miller also went to jail in 2005 for refusing to give up the name of a CIA operative in her column.   Concerns about internet bloggers’ role in news, as well as government intelligence leaks such as Wikileaks, pose an interesting frontier the Supreme Court has yet to address.  While Congress has regulated the airwaves and traditional print media, no such regulations currently exist for online media.

As America changes, the relevancy of our previous understandings of freedom of expression comes in to question.  With the massive forum that is the Internet, how much can government regulate speech in the 21^st Century?  With the decline in print journalism, how relevant is the traditional press in America?  Technology has changed the way that we get our news, and the way we interact with people in a public forum.  It is a valid to ask questions such as “Do our blog posts make us journalists?  Should bloggers be held to the same standard as journalists?”  These are valid questions that have possible legal ramifications.  While we continue to hold our U.S. Supreme Court and its precedents in high esteem, new technology has made some rulings irrelevant.  For example, many people would find a great deal of what is freely available on the internet to be objectionable.  However, if the Supreme Court cannot do anything about the material on the internet, does that make the Miller test irrelevant in the 21^st Century?

In our history, the social and political climate often determines what restrictions are placed on the First Amendment freedoms.[9]  That should continue to ring true in the future as recent events such as NSA PRISM, The Occupy Wall Street Protest, and the passage and the extension of the USA PATRIOT ACT of 2001 have caused controversy over what the government can and cannot regulate in order to keep public order and protect national security.  While Americans universally value freedom of expression, what that expression entails means different things to different people.  Symbolic things like flag burning will remain controversial to Americans because of its message.  To some, flag burning is a symbolic way to protest a foreign or domestic policy. To others, the burning of the flag shows disrespect to the very principles their opponents claim to exercise and represent blatant disrespect to the American freedoms the flag burners enjoy.

Regardless of the current climate, Americans must be able to express their opinion and access information from a free press.  These freedoms are essential to liberty and the democratic form of government.  While it may seem that changes in culture and technology have made certain U.S. Supreme Court interpretations and precedents irrelevant, our First Amendment Rights are just as important today as they were when they were first passed.  Our government is only as good as the liberty it allows us, and by expressing ourselves we are able to have necessary input into the political process.  Through a free press (in whatever form it takes) we are able to read different opinions and get information on our government and government officials.  Americans will continue to need both the freedom of speech and freedom of the press guaranteed by the First Amendment as much as they needed them in 1791.