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.
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Jerry Falwell, who unsuccessfully attempted to sue Hustler Magazine in 1988, establishing that parody is protected speech.

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

Over two decades after the Schenk decision, the U.S. Supreme Court ruled on a case relating to “fighting words” – words spoken at close range in intent to provoke physical action.  In November 1941, a man by the name of Walter Chaplinsky was arrested for calling a Rochester, New Hampshire police officer a “damned fascist” and a racketeer on a public street in close proximity to the officer.[1]  While he was fined and not imprisoned, Chaplinsky appealed the ruling on the grounds that his rights to freedom of speech were violated.  In Chaplinsky v. New Hampshire (1942) the Supreme Court reached a unanimous decision upholding the New Hampshire law. The Supreme Court established a precedent that speech, “likely to provoke the average person to retaliation, and thereby cause a breach of peace”[2] is not constitutionally protected.  While freedom of speech is hallmark to any democracy, the Supreme Court has determined that fighting words do not need to be constitutionally protected because they can potentially bring disorder to society.

In the turbulent 1960s, several important cases involving the freedom of expression were appealed and argued before the U.S. Supreme Court.  In New York Times v. Sullivan (1964), an elected police commissioner sued the New York Times for an advertisement in their paper that was critical of police in Montgomery, Alabama.  The advertisement made a series of statements about police treatment of civil rights leaders, some of which were not factual.  Despite the fact that he was never mentioned by name, L.B. Sullivan felt the article libeled him because to be critical of the police was to, in turn, be critical of the commissioner.  A case without precedent, Sullivan’s lawsuit against the New York Times traveled all the way to the Supreme Court.

Sullivan’s lawsuit was symbolic of something much greater at the time.  “Many Southerners bitterly resented northern efforts to promote civil rights of African American in the South.  To many in Alabama, the New York Times symbolized all that they disliked.”[3]  Rather than have the case tried in New York (as that is where the New York Times was based), Sullivan had the case tried in the Alabama Supreme Court.  Sullivan was awarded a sum of a half million dollars based on Alabama’s libel law.  Disagreeing with the ruling, the New York Times appealed the ruling to the U.S. Supreme Court – an unprecedented action at that time because state law had always handled libel cases.[4]

Unlike the Alabama State Supreme Court, the U.S. Supreme Court ruled 9-0 in the New York Time’s favor.  In the eyes of the justices, the factual errors that were made in the advertisement were of “mere negligence and not actual malice.”[5]  Their ruling set two precedents.  First, the Supreme Court set a precedent that in order to be guilty of libeling public figures, there had to be a deliberate attempt to publish falsehoods or show a “reckless” disregard for the truth. Second, overturning the Alabama Supreme Court, the U.S. Supreme Court Justices applied the First and Fourteenth Amendments (capitalize?) to determine that states cannot award damages to a public official without proving “actual malice.”
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