American Politics Today - Essentials (3rd Ed)

FREEDOM OF SPEECH, ASSEMBLY, AND THE PRESS | 103

SLANDER AND LIBEL

A more extensive line of cases prohibiting speech concerns slander, spoken false
statements that damage someone’s reputation, and libel, written statements that
do the same thing. However, it is diffi cult to draw the line between permissible
speech and slander or libel. The current legal standard distinguishes between
speech about a public fi gure, such as a politician or celebrity, and speech about a
regular person. It is much more diffi cult for public fi gures to prove libel because
they must demonstrate that the defamatory statement was made with “actual mal-
ice” and “with knowledge that it was false or with reckless disregard of whether it
was false or not.”^36
One of the most famous libel cases occurred when Reverend Jerry Falwell, a
well-known televangelist and political activist, sued Hustler magazine for libel
and emotional distress after the magazine published a parody of a liquor adver-
tisement depicting him in a “drunken incestuous rendezvous with his mother
in an outhouse” (this quote is from the Supreme Court case).^37 The Court ruled
against Falwell, saying that public fi gures and public offi cials have to put up with
such things and compared the parody to outrageous political cartoons, which have
always been protected by the First Amendment.

COMMERCIAL SPEECH

Commercial speech, which mostly refers to advertising, has evolved from having

almost no protection under the First Amendment to enjoying quite strong protec-

tion by the 1970s. In a 1976 case the Court struck down a law against advertis-

ing prescription drug prices and one prohibiting placing newspaper racks on city

streets to distribute commercia l publications such a s rea l estate g uides.^38 Another

key decision in 1980 established a test that is still central today. The Court ruled

t h a t t h e g o v e r n m e n t m a y r e g u l a t e c o m m e r c i a l s p e e c h i f i t c o n c e r n s a n i l l e g a l a c t i v-

ity, 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 that the government

has to have a ver y good reason to do it.^39 Even public hea lth concerns have not been

allowed to override commercial speech rights. For example, the Court struck down

a Massachusetts regulation that limited the content of advertisements aimed at

children (the ban on R. J. Reynolds’s Joe Camel character is the classic example)

in a manner that was more restrictive than federal law.^40

OBSCENITY

One area in which the press has never experienced complete freedom

involves the publication of pornography and material considered obscene.

The diffi culty arises in deciding where to draw the line. Nearly everyone

would agree that child pornography should not be published^41 and that

pornography should not be available to minors. However, beyond these

points there is little consensus. For example, some people are off ended by

nude paintings in art museums, while others enjoy watching hardcore

X-r a t e d mov ie s.

Defi ning obscenity has proven diffi cult for the courts. In an

often-quoted moment of frustration, Justice Potter Stewart

wrote that he could not defi ne obscenity, but “I know it when I

see it.”^42 The Supreme Court took a stab at it in 1973 in a case

slander and libel Spoken false

statements (slander) and written

false statements (libel) that damage

a person’s reputation. Both can be

regulated by the government but

are often diffi cult to distinguish

from permissible speech.

commercial speech Public

expression with the aim of making

a profi t. It has received greater pro-

tection under the First Amendment

in recent years but remains less

protected than political speech.

JOE CAMEL PEDDLES HIS WARES

on a New York City billboard.

Commercial speech, as a general

category, is not as strongly

protected by the First Amendment

as political speech, but advertising

can be limited by the government

only in specifi c circumstances.