Basic Information About the First Amendment & Censorship

The legal information found below is provided as a public service by Walters Law Group. 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. 

The “First “ Amendment was actually the “Third Amendment” to the original draft Constitution, but the first two amendments were not adopted, thus creating our bedrock “First Amendment” to the U.S. Constitution, and the beginning of the Bill of Rights. 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 to associate with each other, 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 fundamental rights, as part of what was intended by the framers of the Constitution. Notably, the First Amendment only pertains to actions of the government; whether federal, state, or local.  In other words, private corporations or individuals can – and often do – engage in activity that would otherwise violate First Amendment freedoms, without repercussion.  For more information on ‘private censorship’ see here.

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 (falsely 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. 

Speech need not take the form of written, audio or visual media.  Many expressive acts are protected by the First Amendment if they are intended to convey a message. For example, the act of burning the American flag, or dancing in the nude, are both covered by the First Amendment as expressive activities.

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 media.  Erotic speech is presumed to be protected by the First Amendment, just like speech dealing with violence, drugs or other controversial 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 three-part test for obscenity comes from the case of Miller v. California,413 U.S. 15 (1973), and focuses on whether…

(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 spanning 4 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. See Mr. Walters’ law review article, here.  At least one federal appellate court, for the Ninth Circuit, 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, with most courts still applying local community standards to the analysis.  The geographic scope of this ‘local’ community can vary from a county, a tri-county area, a judicial circuit, or an entire state. The judge presiding over the obscenity prosecution decides what the scope of the community will be in that particular case.

While it is illegal to sell, transport, or distribute obscenity, it is not illegal to possess obscene materials in one’s own home, under the Right of Privacy.

Indecent speech, while legal, can be subjected to age restrictions for purchase or viewing. Many attempts to restrict indecent speech on the Internet have failed, due to First Amendment concerns and conflict with the ‘dormant commerce clause’ of the U.S. Constitution.  However, state laws imposing age restrictions on access to sexually explicit magazines, video tapes, or CD’s, have been upheld, and are routinely enforced.

Sexually explicit material depicting minors is considered child pornography, and is illegal at the state and federal levels.  Promoting erotic material as containing depictions of minors, even if all models are over 18, can still be illegal under federal ‘pandering’ laws.  Erotic content that depicts adults who appear to be under 18, due to their youthful look or makeup, is not child pornography.  Various attempts to criminalize such ‘apparent’ child pornography have failed, although such material could still be deemed obscene.

Producers of erotic material are required to comply with complicated records keeping and labeling laws found at 18 U.S.C. s. 2257 and 28 C.F.R. s. 75.1, et seq.  Walters Law Group launched a mobile application in 2013, called Quick2257, to assist producers with compilation of the mandatory age records associated with erotic media.

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.  For example, teachers at public schools enjoy First Amendment rights regarding their employment activity, while teachers at private schools do not. 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 even if it interferes with the employee’s speech rights.  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 has been active in protecting children from exposure to 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 Annual Service Recognition 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.”  

Does the First Amendment protect advertising?
Yes, so-called “commercial speech” is protected by the First Amendment, although the government is given greater leeway in restricting such speech, if it can demonstrate a substantial governmental interest in doing so.  Regulation of commercial speech is governed by the Central Hudson Test, which is used to evaluate whether a restriction on speech comports with the First Amendment.  Substantial discussion of the Central Hudson Test, in relation to advertising online casinos, can be found in our firm’s article, here. Although commercial speech is not treated the same as political speech or other expressive activities, it enjoys a high level of protection from unreasonable governmental efforts to censor advertising based on the content of the speech.

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.