Basic Information About the First Amendment & Censorship
The following free information is provided courtesy of www.FirstAmendment.com. We encourage you to utilize all the resources on our website, or to contact us for more information regarding our services.
What is the First Amendment?
The full text of the First Amendment, from the United States Constitution, Bill of Rights, is as follows:
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 peaceably to assemble, and to petition the Government for a redress of grievances.
Essentially, the First Amendment guarantees a variety of civil liberties and restricts the government from interfering with freedom of speech, the free exercise of religion, the right of privacy, the freedom to assemble, the right to petition the government for redress of grievances, and further guarantees the separation of church and state. The courts have interpreted, and in some cases, limited, these freedoms in certain circumstances. For example, there is no mention of the right of privacy or the separation of church and state in the Bill of Rights, however the Supreme Court has recognized the existence of these rights, as part of what was intended by the framers of the Constitution. Notably, the First Amendment only pertains to actions of the government. In other words, private corporations or individuals can – and often do – engage in activity that would otherwise violate First Amendment freedoms, without repercussion.
Is all speech protected?
All speech – and expressive conduct – is presumed to be constitutionally-protected unless it falls into one of the following categories: (a) defamation (false statements of fact published to third parties); (b) child pornography; (c) obscenity (see below for further explanation); (d) damaging to national security interests; (e) fighting words; (f) verbal acts (shouting “Fire!” in a crowded theater).
The courts have concluded that the above-referenced categories of speech fall outside the ambit of constitutionally-protected expression, and therefore enjoy no First Amendment privileges. Certain other speech-related activity can also be restricted or criminalized, such as the advertising of illegal transactions, solicitation of criminal acts, and threats of bodily harm, such as assault.
Is pornography legal?
The word “pornography” is not a legal term of art. Instead, it is a word that generally refers to all forms of sexually-explicit expression. Erotic speech is presumed to be protected by the First Amendment, just like speech dealing with violence, drugs or other topics. However, the courts have determined that sexually-explicit expression can cross an uncertain line which makes the material legally “obscene” and therefore unprotected by the First Amendment. The test for obscenity comes from the case of Miller v. California,413 U.S. 15 (1973), and is set forth below:
Generally, the Miller test holds that, in order to strip erotic speech of its presumed constitutional protection so that the disseminator may be punished, the government must establish that:
(a) The average person, applying contemporary community standards, would find that the material, taken as a whole, appeals to the prurient interest in sex, nudity or excretion, (b) based on contemporary community standards, the material contains patently offensive representations or descriptions of nudity or sexual activities, and (c) taken as a whole, the material lack serious literary, artistic, political or scientific value.
Although this test is inherently vague, and difficult to understand, it has survived numerous constitutional challenges over the decades, and remains the viable legal test even today. The advent of the Internet has resulted in questions about the continued viability of the “community standards” element of the Miller Test, given the inability of website publishers to block local geographic jurisdictions from receipt of materials placed online. At least one federal appellate court has ruled that Internet material must be judged by "national standards" as opposed to those of some local, geographic community. However, presently, the “Miller Test” is used to evaluate the legality of online erotic materials as well.
Can my employer fire me for things I say at work, or in my off time?
The First Amendment applies only to government employers, not to private employers. Government employers are prohibited from terminating employees as a result of their speech on matters of public concern, in most circumstances. However, if the employer can show that it was necessary to terminate the employee to preserve some legitimate employer interest, the termination may be upheld. Speech relating to matters that do not fall within the definition of 'public concern' may be used as a basis to terminate employees, even if the speech occurs on the employee's free time.
Can websites censor things I say online?
We are often asked this question from potential clients who have had their Internet messages or postings removed by forums, message boards, website operators or ISP’s. Unfortunately, as noted above, the First Amendment only applies to government actors, and not to private website operators. Therefore, assuming the website is acting on its own, and not at the request or on the behalf of some state or federal government authority, no First Amendment right is violated. However, a customer’s relationship with a website is usually governed by a set of “Terms & Conditions” that are agreed to during the registration or access process. Those Terms & Conditions will usually identify the grounds for removal of communications or termination of the customer’s account. Such user terms and conditions are usually enforced by the courts.
Is anything being done about the ability of children to access adult materials online?
Our law firm is active in protecting children from inappropriate online materials in a variety of ways. Our managing partner, Lawrence G. Walters, Esq., has developed and patented an online age verification device, the BirthDateVerifier™ (www.BirthDateVerifier.com), which helps website operators identify the age of their customers before providing access to age-sensitive materials. We also represent, on a pro bono basis, the Association of Sites Advocating Child Protection (www.ASACP.org), and the WRAAC (www.parentalcontrolbar.com) which are both active in encouraging voluntary labeling and rating by adult websites. Mr. Walters has earned the Service Award from ASACP for his efforts in helping protect children from exposure to age restricted material. Our attorneys often publish articles and speak on issues related to child protection and online materials. While we strongly support the concept of voluntary industry regulation, we are opposed to governmental efforts designed to inhibit adult access to protected speech in the name of “protecting children.”