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.
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 13th 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. 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.” 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.” 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.