128 Chapter 4Chapter 4 || Civil LibertiesCivil Libertiesprohibiting placing newspaper racks on city
streets to distribute commercial publications such
as real estate guides.^93 The key decision in 1980
established a test that is still central today: the
government may regulate commercial speech if it
concerns an illegal activity, if the advertisement
is misleading, or if regulating speech directly
advances a substantial government interest and
the regulation is not excessive. In practice, this test
means that commercial speech can be regulated,
but the government must have a very good reason
to do it.
Commercial speech is even protected when it
could be considered offensive. In 2017, the Court
sided with the Slants, an Asian-American rock
band, in overturning a provision of U.S. patent and
trademark law that prohibited the registration
of trademarks that “disparage” or “bring... into
contempt or disrepute” any “persons, living or
dead.” The Slants, whose application to trademark
their band name had been denied, argued that their
goal was to reclaim the racial slur against Asian
Americans, in the same way that the LGBTQ community over time redefined the
use of “queer.” The Court agreed, saying, “A law that can be directed against speech
found offensive to some portion of the public can be turned against minority and
dissenting views to the detriment of all.” This ruling also means that the Washington
Redskins football team will be able to keep its nickname, despite the fact that many
find it offensive.^94Obscenity One area in which the press has never experienced complete freedom
involves the publication of pornography and material considered obscene. The
difficulty arises in deciding where to draw the line. Nearly everyone would agree that
child pornography should not be published^95 and that pornography should not be
available to minors. However, beyond these points there is not much consensus. For
example, some people are offended by nude paintings in art museums, while others
enjoy watching hard-core X-rated movies.
Defining obscenity has proven difficult for the courts. In an often-quoted
moment of frustration, Justice Potter Stewart wrote that he could not define
obscenity, but “I know it when I see it.”^96 In its first attempt, the Court ruled
that a particular publication could be banned if an “average person, applying
contemporary community standards,” would find that the material appeals to
prurient interests and is “utterly without redeeming social importance.”^97 This
standard proved unworkable because lower courts differed in their interpretation.
The Court took another stab at it in 1973 in a case that gave rise to the Miller test,
which is still applied today.^98 The test has three standards that must all be met
in order for material to be banned as obscene: (1) it appeals to prurient interests,
(2) it is “patently offensive,” and (3) the work as a whole lacks serious literary,
artistic, political, or scientific value. The Court also clarified that local community
standards were to apply rather than a single national standard, reasoning that what
passes for obscenity in Sioux City, Iowa, probably would be considered pretty tame
in Las Vegas.Miller test
Established in Miller v. California,
this three-part test is used by the
Supreme Court to determine
whether speech meets the criteria for
obscenity. If so, it can be restricted by
the government.Commercial speech may be protected
even if some consider its content
offensive. The rock band the Slants
won the right to trademark their band
name even though it refers to a racial
slur against the Asian-American
community.Full_05_APT_64431_ch04_102-147.indd 128 16/11/18 1:30 PM