Virginia v. Black: Hard-Core Hate Speech, Hard-Core Porn and the First Amendment

Since the Supreme Court's earliest exposition of First Amendment law, the Court has consistently held that not all uses of words are covered by the phrase "freedom of speech or of the press." If a particular use of words has "the effect of force" — as in, for instance, inciting a murder-prone person to murder — those words in those circumstances are not considered protected by the Constitution.¹ About fifty years ago, the Supreme Court added to this rule, the additional rule that certain categories of speech and press are not protected by the First Amendment. The Court explained:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. [They] . . . are not in any proper sense communication of information or opinion. . . ²

As of 1993, the Court continues to rule (and has never ruled otherwise) that the libelous, the obscene and "fighting" words remain unprotected categories of speech or press. However, the justices have varied the definitions of these terms over the years and in that way have expanded or contracted the freedom to say things that are arguably "fighting" words or to print the arguably libelous or obscene.

Obscenity Doctrine

While feminists were by no means unanimous on the subject, numerous feminists in the 1970s and 1980s engaged in a variety of campaigns against the multi-billion dollar pornography industry on the grounds that pornography, in depicting women as mere body parts meant for men's pleasure, debased women in the minds of the public and encouraged, both implicitly and explicitly, sexual violence against women. Since legally "obscene" books, pamphlets and movies are NOT protected by the First Amendment, and are in fact outlawed in every state, one might wonder why there is a pornography problem in the first place.

The answer to this is two-fold. Beginning in 1966, part of the problem could be blamed on a Supreme Court opinion that defined "obscenity" so narrowly that virtually nothing could be squeezed into the definition.³ In that case obscenity was said to be, among other things, material that was "utterly without redeeming social importance."⁴ Since even the most hard-core pornography has entertainment value for someone, this standard ended up opening the commercial floodgates for pornography.

Reacting to this situation, the Supreme Court in 1973 widened the definition somewhat.⁵ The Court replaced the rule "utterly without importance" with a rule that said that to be judged obscene a work would have to, "taken as a whole, lack serious literary, artistic, political, or scientific value."⁶ In addition, two other tests have to be applied to determine obscenity. First, the judge must determine "whether the average [adult] person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest [in sex].⁷ In an earlier case, the Court had referred readers to a dictionary definition of "prurient"; in part it read: "Itching; longing; uneasy with desire or longing . . . "⁸ Secondly, the judge must decide "whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law."⁹ (One of several examples of "sexual conduct" that the Court listed as possibilities for inclusion in state statutes that itemize what may not be offensively depicted was "lewd exhibition of the genitals."¹⁰ ) If a work fails both these tests and also lacks "serious importance," then it is legally obscene and may be banned.

In addition to altering the legal definition of the obscene, so as to...