Schenck v. United States (1919): anti-war activist arrested for sending out leaflets against the WWI draft
Court unanimously upheld arrest
Cannot be “falsely shouting fire in a theatre”
Create “clear and present danger” — wartime
Brandenburg v. Ohio (1969) → limited to speech that would incite “imminent lawless action”
Fighting words
Chaplinsky v. New Hampshire (1942): a man distributing anti-religious pamphlets was arrested for calling a town official “a goddamned racketeer” and “a damned fascist”
Court unanimously upheld arrest
“insulting or ‘fighting’ words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”
Severely limited, SCOTUS has never upheld conviction based on “fighting words” since 1942, but yet to be overheard
Obscenity
Since 1868, Court has ruled “obscene material is not protected by the First Amendment”
But what is obscene?
Usually visual imagery
Justice Potter Stewart (1964): “I know it when I see it”
Miller v. California (1973): established the 3-prong “Miller test”, primarily for visual obscenity
Whether the work, when “applying contemporary community standards, … appeals to the prurient interest”
Prurient: having or encouraging an excessive interest in sexual matters
Whether the work describes “in a patently offensive way” sexual conduct (or excretory functions) as defined by state law
Whether the work, taken as a whole, “lacks serious literary, artistic, political, or scientific value”