G. Offensive Speech
In Cohen v. California, 403 U.S. 15 (1971),
defendant was convicted of disturbing the peace, after he
walked through a courthouse corridor wearing a jacket
bearing the words ‘Fuck the Draft’ in a place where
women and children were present. Held: the conviction
could not be justified either upon theory that words were
inherently likely to cause violent reaction or upon the
more general assertion that the states may remove an
offensive word from the public vocabulary. Consistent
with the First and Fourteenth Amendments, the states
cannot make the simple public display of a four-letter
expletive a criminal offense.
In Bethel School District No. 403 v. Fraser, 478 U.S.
675 (1986), a student filed civil rights action after he was
disciplined for language used during nominating speech
at student assembly. The Supreme Court held that
school district acted entirely within its permissible
authority in imposing sanctions upon student in
response to his offensively lewd and indecent speech,
which had no claim to First Amendment protection.
In United States v. Playboy Entertainment Group, Inc.,
529 U.S. 803, 120 S.Ct. 1878 (2000), a cable television
programmer brought action against United States,
seeking declaratory judgment that Telecommunications
Act’s “signal bleed” provision, requiring cable operators
either to scramble sexually explicit channels in full or
limit programming on such channels to certain hours,
was unconstitutional, and seeking an injunction
prohibiting enforcement of the law. The Supreme Court
held that: (1) the provision was content-based restriction
that was subject to strict scrutiny; and (2) the provision
violated the First Amendment’s free speech clause, absent
showing by government that provision was least
restrictive means of achieving goal of preventing children
from hearing or seeing images resulting from “signal
bleed.”
In Reno v. A.C.L.U., 521 U.S. 844 (1997), plaintiffs
filed suit challenging the constitutionality of the
Communications Decency Act (CDA), which was
enacted to protect minors from harmful material on the
Internet. The Supreme court held that: (1) provisions of
the CDA prohibiting transmission of obscene or indecent
communications by means of telecommunications device
to persons under age 18, and prohibiting transmission of
patently offensive communications through use of
interactive computer service to persons under age 18,
were content-based blanket restrictions on speech, and,
as such, could not be viewed as a form of time, place, and
manner regulation; (2) challenged provisions were
facially overbroad in violation of the First Amendment;
and (3) constitutionality of provision prohibiting
transmission of obscene or indecent communications by
means of telecommunications device to persons under
age 18 would be saved from facial overbreadth challenge
by severing term “or indecent” from statute.In Denver Area Educational Telecommunications
Consortium, Inc. v. Federal Communications Commission,
518 U.S. 727 (1996), television access programmers and
cable television viewers petitioned for judicial review of
Federal Communications Commission orders imple-
menting Cable Television Consumer Protection and
Competition Act section governing indecent and obscene
programming. The Supreme Court held that: (1)
provision permitting operator to prohibit patently
offensive or indecent programming on leased access
channels is consistent with First Amendment; (2)
“segregate and block” provision with respect to leased
access channels violates First Amendment; and (3)
provision permitting operator to prohibit patently
offensive or indecent programming on public access
channels violates First Amendment.R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). The
State may ban all “fighting words.” But it may not choose
to ban only those fighting words directed at the listener’s
race, religion, or other enumerated traits. Thus, city
ordinance prohibiting bias-motivated disorderly con-
duct was facially invalid under the First Amendment.In United States v. X-Citement Video, Inc., 513 U.S.
64 (1994), defendant was convicted of violating the
Protection of Children Against Sexual Exploitation Act.
The Ninth Circuit reversed on ground that Act violated
First Amendment. The United States Supreme Court
reversed, holding that term “knowingly” as used in Act
applied to elements of crime concerning minority of
performers and sexually explicit nature of material,
despite natural grammatical reading of Act under which
scienter element would apply only to transport element.In Sable Communications of California v. Federal
Communications Comm’n, 492 U.S. 115 (1989), a “dial-
a-porn” service sought declaratory and injunctive relief
against enforcement of Communications Act amend-
ments imposing blanket prohibition on indecent as well
as obscene interstate commercial telephone messages.
The Supreme court held that: (1) prohibition of obscene
telephone messages was constitutional; and (2) denial of
adult access to telephone messages which were indecent
but not obscene far exceeded that which was necessary to