As described in our prior post, the U.S. Supreme Court has enunciated broad rules to protect free speech, but there are still difficult issues about which clear rules are difficult to find. These issues have been highlighted recently in anti-Israel protests and debates over the age-appropriateness of content available to children.

Intimidating protests and hate speech

Recent demonstrations have raised the question of limits on protesting. It is well established legally that governments must allow peaceful protests but can create some limits based on the “time, place and manner” of the demonstration. Thus, a city could refuse to allow a demonstration in the middle of the night or in a crowded public place where necessary passage by others would be obstructed, or it could limit the volume of speech over a loudspeaker.

What about a protest that may intimidate others, as in the recent protests where Jewish students at Cooper Union were reportedly locked in the library because protesters were acting in a threatening way? As discussed in the last post, when a protester’s conduct or speech creates an imminent danger to others, the state can act to defuse the threat, even by ending the protest.

Some landmark free speech cases have leaned very far toward allowing intimidating speech. The best-known is probably National Socialist Party of America v. Skokie in which American Nazi party members sought to march through a predominantly Jewish community in Illinois where many Holocaust survivors lived. The city tried to prevent this, and a state trial court issued an injunction to prevent the demonstration. Eventually, the Illinois Supreme Court ruled that the protest did not constitute imminent incitement to violence and had to be allowed.

More recently, the U.S. Supreme Court ruled in favor of protesters after they were sued by the family of a deceased soldier following a disgusting protest at the soldier’s funeral. The trial court awarded the family damages for intentional infliction of emotional distress, but this award was reversed by the court of appeals, with whom a lopsided majority of the Supreme Court agreed.

Interestingly, Justice Samuel Alito dissented, characterizing the majority opinion as having “protected [protesters’] right to brutalize” the deceased soldier’s father. Alito said prior free speech cases should not be read to allow protesters to “intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.” He concluded: “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like” the father.

Though the Supreme Court has said that governments cannot enforce laws that punish some messages that could be understood as “hate speech” while not punishing other controversial messages, it has not precluded the possibility that a neutral hate crimes law could be allowed. As a result, most U.S. states enforce some type of hate crime law. The idea of such a law is that if a crime is committed to intimidate a group of people, it could result in a heavier penalty than the same act committed without the intent to intimidate a group (i.e., vandalizing a synagogue with a swastika would be considered more serious than spray painting your name on a 7-Eleven store).

Obscenity and children

Utah has recently been sued by producers of pornography because the state requires them to verify their users are adults before providing them access to obscene material. The Supreme Court has repeatedly held that obscenity is not protected speech under the First Amendment. Material is considered obscene if (1) an “average person” would consider that it is meant to cater to sexual interests as understood by local “community standards,” (2) the material “depicts or describes, in a patently offensive way” sexual content clearly prohibited by state law, and (3) “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Despite this rule, distribution of obscene material is rarely prosecuted.

Congress attempted to regulate obscene material online, but the Supreme Court struck down the provisions related to that effort because it said the standards for determining what conduct was prohibited were too vague. The decision seemed to suggest, however, that restrictions on children’s access could be valid if adults were not impacted.

California attempted to regulate violent video games, limiting their sale or rental to minors, but that law was struck down by the court. The majority held that video games are protected speech and that the state could not show a “longstanding tradition in this country of specially restricting children’s access to depictions of violence.”

Interestingly, the court distinguished this from another case allowing restrictions on access of sexually explicit materials to minors. Justice Stephen Breyer dissented, saying “the First Amendment does not disable government from helping parents make … a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children.” Justice Clarence Thomas also dissented, noting that “[t]he practices and beliefs of the founding generation establish that ‘the freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.”

Though there are some discrepancies among the rulings, Utah seems to be clearly within its rights to keep minors from accessing pornography. It will be very helpful, though, to other states and local governments to have more guidance about how they can regulate material the court recognizes as harmful and not specifically protected by the Constitution.

Conclusion

Though the courts recognize that the First Amendment shouldn’t be interpreted to prevent communities from protecting against harmful practices just because they can be characterized as speech or speech related, the relevant cases are not always clear and, taken together, they can seem to point in contradictory directions. The safest approach would be to focus on what the public understood they were protecting when the First Amendment was ratified. That would allow commonsense regulations while still giving robust protection to unpopular opinions.