Obscene Speech and the 1st Amendment

Cite this article as: Jason Mance Gordon, "Obscene Speech and the 1st Amendment," in The Business Professor, updated January 2, 2015, last accessed April 9, 2020, https://thebusinessprofessor.com/knowledge-base/obscene-speech-and-the-1st-amendment/.
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Obscene Speech and the 1st Amendment
What is Obscene Speech? The 1st Amendment freedom of speech does not protect obscenity.

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Obscene Speech and the 1st Amendment

Obscene expressions are those that appeal to the “prurient interest”. Such expressions are deemed harmful to the community. There is no standard definition of obscenity; rather, courts determine whether an expression is obscene based upon the beliefs, perceptions, or standards of the local population. While there is no common definition of obscenity, a state or local law that is too restrictive or broad in its provisions limiting expression is subject to be overturned by the judiciary as an undue restriction on the freedom of speech.

  • Example: One community may feel that allowing fully nude dancing in night clubs is obscene; while other communities may not believe it to be obscene.

Discussion: How do you feel about using a floating standard for determining what is obscene? Can a law, therefore, begin to violate 1st Amendment protections if the beliefs and understandings of the local population change or evolve?

Discussion Input

  • Some would argue that a floating standard leaves too much room for judicial interpretation and does little to provide guidance to those seeking to comply with the law. Others would say that a floating standard is necessary to adequately address the myriad issues that arise in this context. Under this standard, it is completely foreseeable that the public sentiment toward a type of speech or expression could change. As such, that could lead to a judicial interpretation that the expression violates local norms of what is decent and obscene.

Practice Question: ABC Town has a local ordinance that prohibits any form of nude dancing. XYZ Town is located just north of ABC. XYZ does not restrict any form of public nudity. If a citizen of ABC Town challenges the local ordinance, what standard will the court apply in determining whether the ordinance violates the citizen’s 1st Amendment freedom of speech? (Hint: Ignore any argument that such a statute is overbroad.

Proposed Answer

  • Because this ordinance directly affects a form of expression, the court will first determine whether the expression is a protected form of speech. If so, the court will employ a strict scrutiny test. Is this a compelling government interest? Is this the least restrictive manner of promoting that interest?

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