The First Amendment to the United States Constitution guarantees freedom of expression as a fundamental right. However, the practice of this freedom is not absolute since the courts control some sort of speech. The principles created by the Supreme Court to control profanity, symbolic expression, and libel will be discussed in this piece. Furthermore, it will apply these standards to various scenarios to establish which speech is covered by the First Amendment and which is not.
While the law prohibits any form of harassment or restriction of free speech, certain aspects are not protected by the First Amendment. Thus, it can be said that the First Amendment provides strong protection for free speech in the United States. However, some restrictions exist on the types of speech that the law can protect. The courts have established rules for regulating libelous speech that the First Amendment does not protect. To prove defamation, the plaintiff must show that the statement was false, was published, and damaged his reputation. Slander refers to a false statement that damages one’s reputation.
First, obscenities are not protected speech under the First Amendment. The Supreme Court created the Miller test to determine what is considered obscene. Its criteria consider communication improper if it appeals to impure interests, is offensive, and lacks aesthetic, literary, ideological, or scientific significance (Wex, “Obscenity”). The Supreme Court has declared that activities that indicate a specific opinion constitute symbolic communication (Wex, “Symbolic Speech: Overview”). Justice acts not only based on the fact of the crime itself but also its context. The government may differently regard the burning of a military ID issued by a country and a flag that a citizen has acquired at his own expense (Hollenbeck, “Freedom of Speech – Defamation”). Burning the American flag is permissible by free expression under the First Amendment, but destroying the military draft card is not. The Supreme Court has declared that burning the American flag is an acceptable expression under the First Amendment. This court decision was based on the idea that the First Amendment protects the expression of thought, even offensive.
The Court defined obscenity as speech that appeals to prurient interests or describes sexual behavior. The Miller test, established in Miller v. California, determines if speech is obscene (Hollenbeck, “Freedom of Speech – Defamation”). This requires the work to be of prurient interest, depict sexual behavior blatantly offensively, and be of no serious value. The First Amendment protects symbolic speech, such as burning a flag or wearing a black armband in protest. In Texas v. Johnson, the court ruled that flag burning protected symbolic speech (Hollenbeck, “Freedom of Speech – Defamation”). If the plaintiff is a public figure, he must prove that the statement was made with real malice. The speaker knew that the statement was false or recklessly ignored the truth. The New York Times v. Sullivan set a de facto standard of malice for public figures that requires a plaintiff to prove that a defendant made a statement knowing it was false or reckless disregard for the truth (Hollenbeck, “Freedom of Speech – Defamation”). The public cannot sue the school administration for spreading obscenity. According to the Miller test, obscenity is defined as a picture that appeals to prurient interests and has no serious literary, artistic, political, or scientific value (Hollenbeck, “Freedom of Speech – Defamation”). Therefore, educational institutions can continue to include such images in their materials.
Former President Obama’s attorneys would have had to establish that Trump’s comment was untrue, defamatory, and caused injury to Obama’s reputation if he opted to sue former President Trump for libel. Why President Obama did not file a libel lawsuit against President Trump is unknown.
The First Amendment ensures free expression, but it is not absolute. Obscene language, symbolic expression, and libel or slander are all prohibited by the Supreme Court. The Miller test detects obscene speech, although symbolic communication is protected under the First Amendment. To establish libel or slander, the claimant must demonstrate that the comment was untrue, defamatory, and harmed their reputation. While the government has the authority to control certain sorts of speech, it must do so within the framework of the First Amendment.
Works Cited
Hollenbeck, Scarinci. “Freedom of Speech – Defamation.” Constitutional Law Reporter, Web.
Wex. “Obscenity.” Legal Information Institute, Web.
“Symbolic Speech: Overview.” Legal Information Institute, Web.