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First Amendment
South Texas College of Law Houston
Bergin, Kathleen

First Amendment
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government of a redress of grievances
Theories for why the right to free speech is important
The marketplace of ideas
Exchange of different ideas
Primary justification for protecting the right to free speech
Can only get to the truth if we can discount falsity and can only do that if ideas are exchanged freely in the marketplace
Must be accessible to be an effective market
Representative democracy
Free flow of ideas provides for counter information, which allows people to hold lawmakers accountable
Allowing all ideas to get out there may also help stabilize society b/c it prevents uprising/revolt
Autonomy – self-fulfillment
1st should be read broadly to protect everyone’s idea of what might be art, politics, etc
Something that is art to one person may be political or offensive to others
Government distrust
1st amendment presumes the gov’t does not have the people’s best interests in mind and that there is an inherent bias motivating gov’t decisions
Miller v. California, 413 U.S. 15 (1973)
Miller was convicted of mailing unsolicited sexual material in violation of California law
Gov’t has a legitimate interest in protecting unwitting recipients and juveniles
At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political or scientific value to merit 1st amendment value
·         Three prong test
§         Obscenity includes the following material:
·         That which that the average person, applying community standards, taken as a whole work would find appeals to the prurient appeal (promotes lustful thoughts)
·         Lustful thoughts = images that arouse interest in sexual activity
·         Prurient appeal refers to material that gives rise to thoughts outside of the norm, thoughts that are deviant
·         That material that is patently offensive (describes/depicts sex acts, specifically defined)
·         Sex acts must be specifically defined so that people are on notice
·         Community standard applies here as well
·         Lacks serious literary, artistic, political or scientific value
·         Material can be obscene even though it has some value and be prohibited

     Court says though that the state may be able to rely on education and punishment
·         This is a typical fall back answer the court gives to states when they strike down statutes
·         Education – promoting the marketplace of ideas
·         Punishment
·         Can still go after someone who has an intent to distribute but can only do so after establishing that intent to distribute existed
o        New York v. Ferber, 458 US 747
·         Child porn is never ok b/c here the state is trying to protect the physical and mental health of the kids
§         The Miller test bears no connection to the issue of whether a child has been harmed
·         The nature of the injury is different
·         Further, the harm lasts for the child’s whole life b/c the picture pretty much never goes away
§         Court takes a broader view to dry up the source and get rid of the problem
·         Court, in dicta, suggests using youthful looking adults as an alternative to using children