Basic Information About the First Amendment & Censorship

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What is the First Amendment?

The full text of the First Amendment, from the United States Constitution, 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.

Basically, 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 freedom to assemble, the right of privacy, and the separation of church and state.  The courts have interpreted, and in some cases, limited, these freedoms in certain circumstances.  The First Amendment only pertains to actions of the government.  In other words, private corporations or individuals can – and often do – 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) obscenity (see below for further explanation); (c) damaging to national security interests; (d) fighting words; (e) 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.

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 a line which makes it 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, a prosecutor must establish, in very general terms, that the materials at issue:

 (a) The average person, applying contemporary community standards, would find, taken as a whole, appeal to the prurient interest in sex, nudity or excretion, (b) contain patently offensive representations of nudity or sexual activities, and (c) taken as a whole, 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 a 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.  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?

The First Amendment applies only to government employers, not to private employers.  Government employers are prohibited from terminating employees as a result of 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 must be upheld.

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 large 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 entity, 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.

Is anything being done about the ability of children to access adult materials online?