The Freedom to Write
The First Amendment of the United States Constitution embodies the basic freedom to express oneself in writing in the statement, “Congress shall make no law … abridging the freedom of speech, or of the press.” Censorship has been constitutionally disfavored since the founding of the United States. Some historians suggest that the First Amendment was written specifically to prevent prior restraint of expression by the government. Prior restraints impose an extreme burden upon the exercise of free speech, since they limit open debate and the unfettered dissemination of knowledge. It is not surprising that the United States Supreme Court has consistently found that it is unconstitutional to restrain speech prior to a determination of whether the speech is protected by the First Amendment.
However, that is not to say that all speech is permissible. The courts uphold laws that protect consumers from false advertising, prevent incitements likely to cause immediate unlawful violence, and control distribution of pornography. Governmental restraint on speech revolves around the type of speech being made, the purpose behind the speech, and the time, place, and manner of the speech.
POLITICAL SPEECH
The courts are very hesitant to prevent someone from expressing his or her views. As such, it is not easy for the government to pass laws restricting speech. This is especially true when the expression goes toward political speech—speech that criticizes the government or otherwise questions its authority.
Any attempt by the government to prevent the publication of expression bears a heavy presumption against its constitutional validity. Even cases where national security is at issue receive strict scrutiny. Under the strict scrutiny standard, courts look behind the nominal justifications offered by government entities for why a restriction is necessary and apply their judgment as to whether the alleged harm is sufficiently serious to warrant regulation. A good example of such a case is New York Times Co. v. United States, in which the government tried to stop the publication of the “Pentagon Papers,” which detailed US involvement in Vietnam prior to 1968. The government claimed that publication violated a statute protecting government secrets, and that publication of the documents would prolong the war and embarrass the United States in the conduct of its diplomacy. The Supreme Court, although unable to agree on a single basis for its holding, found that the government’s claim of potential injury to the United States was insufficient to justify prior restraint. The justices, although believing that publication would probably be harmful, were not persuaded that publication would surely cause the harm alleged.
Even political speech that advocates the use of unlawful force is constitutionally protected, except where such advocacy is likely to produce imminent lawless action. However, the legal standard for evaluating whether words are likely to lead to violence is very high. In such cases, the government must show that the speech is both directed to a particular person and is inherently likely to result in violent action. The mere use of expletives and offensive words, without a compelling reason to believe they will lead to imminent violence, is protected by the First Amendment.
For the most part, the constitutional battles over the right to political speech have shifted away from issues of whether citizens have the right to criticize governments or even the form of government. A more divisive issue is to what extent the First Amendment affects the right to express political views that reflect negatively on race, creed, sexual orientation, religion, or national origin. A number of schools and universities have adopted codes that prohibit statements that express any form of prejudice or bigotry, such as racism, anti-Semitism, or homophobia. Some of these codes have been struck down by courts, but many remain.
JUDICIAL PROCEEDINGS
Courts are also reluctant to suppress information related to judicial processes because of the important constitutional interests inherent in having public trials. To justify the imposition of gag orders, parties who seek to restrict reporting and public access to legal proceedings must show that there are no reasonable alternatives. The most common situation is when the issue is the conflict between an individual’s right to a fair trial and the right of the press to its First Amendment guarantee of free speech.
For example, in Nebraska Press Association v. Stuart, the Nebraska Press Association appealed a court order prohibiting the press from reporting about confessions and other information implicating a defendant after the murder of six family members had gained widespread public attention. The trial judge originally issued the order because he felt that pretrial publicity would make it difficult to select a jury that had not been exposed to prejudicial press coverage. The United States Supreme Court struck down the trial judge’s order, finding that the impact of publicity on jurors was “speculative, dealing with factors unknown and unknowable.” The justices went on to suggest alternatives to restraining all publication. These included changing the location of the trial, postponing the trial, asking in-depth questions of prospective jury members during the selection process to determine bias, explicitly instructing the jury to consider only evidence presented at trial, and isolating the jury. In other words, judges must consider alternative methods of pretrial precautions and should restrict coverage only as a last resort.
Court records are generally considered public records. Even grand jury records, generally considered secret, may sometimes be obtained given a good enough reason. In Carlson v. U.S., a 2016 case from the Seventh Circuit Court of Appeals, a journalist/historian and some scholarly, journalistic, and historic organizations sought access to grand jury records, sealed long ago, concerning an investigation into a 1942 Chicago Tribune article claiming, based on classified Navy communications, that the US military had cracked certain Japanese codes. Although no one contended that secrecy was still necessary, the government still declined to allow access to the records, arguing that a criminal rule of court with respect to grand jury materials prohibited disclosure. The court ruled that the records were court records and that the trial court had the authority to release them, in the exceptional circumstances presented, and because of their historic importance and the fact that there was no good reason to keep them secret any longer.
COMMERCIAL SPEECH
In areas outside of political speech, the court has been more tolerant of prior restraints. For example, prior restraints may be permissible when purely commercial speech, such as advertisements or other promotional material, is involved.
Since commercial statements are generally objective in content, whether they are true or false can readily be determined. Thus, there is little or no threat of prior restraints being arbitrarily imposed. Plus, commercial speech lacks the urgency that often accompanies noncommercial speech, so any delay caused by the restraint while its justification is being argued would be relatively harmless. Based on these considerations, regulation of commercial speech is generally permitted.
An aspect related to the regulation of commercial speech is whether governments may enact laws that protect commercial producers and manufacturers from the disparagement of their products. Although the common law tort of trade libel is available to address such concerns, some states have enacted laws that reduce the burden of proof needed to prevail in such a case. The government’s interest is to protect state economies from being harmed by irresponsible assertions about goods. These concerns are not without merit, since there have been instances in which industries have suffered severely following media reports of questionable reliability that claimed certain products were dangerous. On the other hand, such laws can suppress speech by imposing requirements, such as having to base assertions on reliable, scientific facts. Such standards have the practical effect of discouraging controversial statements and limiting the population of qualified writers to those with science or technical backgrounds.
The best-known examples of these kinds of laws are the food disparagement statutes that are in effect in more than a dozen states. These statutes vary in their legal elements but generally provide producers of perishable foods with a cause of action against anyone who disseminates statements that impugn the safety of a food product without a reasonable scientific basis for the claim. The Texas food disparagement statute was used in 1997 as the basis of a lawsuit against talk show host Oprah Winfrey for remarks she made during a segment of her program about mad cow disease. She prevailed in the suit after the court ruled that the segment may have been hyperbolic but was not defamatory, as required by the statute. The applicability of the First Amendment was not decided in the case and the constitutionality of these statutes remains undecided.
Pornographic writing is another area where the government may regulate content, although the legal standards are more difficult to apply than with commercial speech. A variety of laws are involved in regulating pornographic materials, including federal laws that prohibit the transportation of obscene material across state lines and state laws that prohibit creating, publishing, and publicly displaying obscene material. The traditional legal basis under which pornography has been regulated is the belief that obscene materials are offensive and lack sufficient social utility to deserve protection under the First Amendment. Another basis advocated in more recent times is that pornography encourages crimes and harmful conduct toward women and minors, and therefore is injurious.
IN PLAIN ENGLISH
Although there is a history of writers and publishers being prosecuted for material that was considered pornographic, most (if not all) prosecutions in the last forty years have involved visual images and not written text.
In 1973, the Supreme Court set forth the modern standard governing how pornography would be addressed under the First Amendment in Miller v. California. The standard created in Miller to determine if something is considered obscene is
• whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interest;
• whether the work depicts or describes, in a patently offensive way, sexual conduct as specifically defined by the applicable state law; and
• whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific values.
The intent of Miller was to provide much clearer guidelines for protected speech both to state legislatures enacting statutes and to prosecutors enforcing that legislation. Miller required that state statutes be more specific, so the states attempted to define the Miller test for their own communities. While the Miller standard has led to the enactment of laws by states that vary in their specificity, breadth, and chilling effect, the war against pornography has shifted to visual depictions, and prosecutions against creators of purely textual works seem to have virtually disappeared. Nonetheless, some states do have statutes that prohibit writings that are obscene, and writers who describe matters related to sexual conduct should have a general understanding about how the Miller standards are applied.
One of the greatest difficulties courts have in applying the Miller test involves defining community for the purposes of ascertaining standards. A juror is to draw on personal knowledge of the community, but not on personal standards of what is good or bad. Separating the two is not an easy task for many.
Secondly, while items that are patently offensive are given little protection, items outside the definition may or may not be protected. Patently offensive refers to hardcore materials that, among other things, include patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. It also refers to patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibitions of the genitals. Since materials less than patently offensive may well be entitled to First Amendment protection, states’ power to arbitrarily define obscenity is limited.
The Communications Decency Act of 1996
One federal act of which writers should be aware is the Communications Decency Act of 1996 (CDA). Through it, Congress attempted to regulate pornography on the Internet. Portions of the act, antipornography portions, were subsequently found to be unconstitutional by the US Supreme Court in the case of Reno v. ACLU. Oddly, a part of the Act that remained, 47 USC Section 230, is one that insulated Internet service providers, or sites such as Facebook and YouTube, from liability for postings by others. It states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This law has been heralded as a huge boon to free speech on the Internet.
Unlike pornography that depicts adults, the standard for obscenity set forth in Miller does not apply to pornography that depicts children. Such materials are not protected by the First Amendment. The reason that governments are entitled to greater leeway in regulating pornographic depictions of children is that the use of children as subjects of pornography is deemed to be harmful to their physiological, emotional, and mental health. The Miller standards do not apply to child pornography, and governments may prohibit sexually suggestive depictions irrespective of the degree of offensiveness. Although the ability of the government to regulate child pornography is very broad, the legislative and enforcement actions at the federal level that attempt to eliminate child pornography have targeted visual depictions rather than written ones. Nonetheless, the sanctions for violating the laws against child pornography are uniformly severe. Any writer who contemplates using illustrations or descriptions of children in a sexually suggestive manner is advised to consult a lawyer to determine the legality of such use.
Sometimes a law protecting freedom of speech may have unintended consequences in other areas, however. For example, in Doe v. Backpage.com, the Communications Decency Act, discussed above, was used as a defense for a provider of online advertising that allegedly organized its website to facilitate sex trafficking, in order to avoid liability to minor trafficking victims for posting advertisements of the victims as escorts. Since the provider was not the speaker of the contents of the advertisements, it was absolved of liability for the posting. That does not mean, of course, that the posters were not liable for their conduct, regardless of the difficulty of finding and prosecuting them.
Violence against Women
Following the United States Supreme Court’s holding that child pornography may be regulated on the grounds that it harms children, some interest groups have advocated that all pornography depicting women should be regulated. The reasoning is that it is degrading and leads to violence against women, even though it is not considered obscene under the Miller test. In 1984, the city of Indianapolis promulgated an ordinance that prohibited the production and distribution of materials that depicted the graphic sexually explicit subordination of women in words or pictures. The US Court of Appeals ruled that concerns about the debasement of women did not override the requirements set forth by the Supreme Court in Miller. Therefore, while children are given special protection when it comes to pornography, adult women are not.
TIME, PLACE, AND MANNER RESTRICTIONS
Time, place, and manner restrictions on speech are examined under a less stringent standard than is the case with restrictions on content. Governmental efforts to regulate time, place, and manner must be neutral with regard to the speech’s content and may not burden the flow of ideas to a substantial extent. Such restrictions must leave open ample alternative avenues of communication. The most common restrictions involve regulating the times and places where public performances and demonstrations may be held. Although there are instances where writing is regulated according to time and place, they are inconsequential for most writers. Examples of content-neutral regulations include ordinances that ban posting signs and flyers on public utility poles and format requirements for documents submitted to government offices.
Another kind of restriction that has been imposed on a manner of communication is the sending of unsolicited commercial facsimiles, commonly called junk faxes. The rationale for the government’s interest in regulating this form of commercial speech is that junk faxes interfere with the recipients’ ability to receive desired communications and shift the costs of receiving advertisements to the recipient. In 1991, Congress enacted the Telephone Consumer Protection Act (TCPA). It bans junk faxes and allows recipients to sue senders and recover their actual damages or five hundred dollars, whichever is greater.
Congress and several states have passed legislation to combat the proliferation of unsolicited commercial email commonly known as spam. The federal legislation requires senders to label unsolicited commercial email messages and to provide instructions on how recipients can opt out of receiving future messages. The messages must also include the sender’s physical address. Deceptive subject lines and false headers are prohibited. Certain spam practices, such as electronically hijacking computers to send messages and using deceptive subject lines, are criminal offenses, and many states have similar laws. However, provisions that require specific labels identifying the email as a solicitation or advertisement, such as “ADV,” are preempted by federal law and thus nonenforceable. A significant difference between federal law and state law is that several states allow individual recipients of unlawful email to sue the persons responsible for sending it.