Statutes that regulate nude dancing have also been attacked under the First Amendment. Although the US Supreme Court has ruled that nude dancing is constitutionally protected expression, it has also upheld reasonable restrictions on nudity, such as requirements that nude dancers wear pasties and a g-string. 1
Conduct Prohibited |
Potential Constitutional Challenge |
Necessary Statutory Requirements |
Fighting words |
First Amendment, vague, overbreadth |
Must proscribe imminent lawless action, be narrowly drafted, precise |
Incitement to riot |
First Amendment, vague, overbreadth |
Must proscribe imminent lawless action, be narrowly drafted, precise; cannot prohibit simple advocacy |
Hate speech |
First Amendment, vague, overbreadth |
Must be narrowly drafted, precise; must target speech supported by the intent to intimidate; cannot be content based without a compelling government interest |
Obscenity |
First Amendment, vague, overbreadth |
Must be narrowly drafted, precise; must target speech that appeals to a prurient interest in sex, depicts sex in a patently offensive way, lacks serious social value |
Nude dancing |
First Amendment, vague, overbreadth |
Can be reasonably restricted |
LAW AND ETHICS
Should Depictions of Animal Cruelty Be Protected by the First Amendment?
Congress enacted 18 U.S.C. § 48, which criminalizes commercial creation, sale, or possession of a visual or auditory depiction in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if that conduct violates federal or state law where the creation, sale, or possession takes place.
In UnitedStatesv. Stevens, 552 U.S. 442 (2010), the US Supreme Court held that this statute is faciallyoverbroadand violative of the FirstAmendment. Specifically, the Court held that depictions of animal cruelty are entitled to First Amendment protection, and the statute is presumptivelyinvalidbecause it is contentbased. In addition, the Court stated that the government’s interest in censoring this type of material is not compelling enough to outweigh the prohibition on protected speech and that the statute on its face included material that may have redeeming social value. The Court’s opinion is available at this link: http://www.law.cornell.edu/supct/html/08-769.ZO.html
- Do you think the First Amendment should protect material depicting animal cruelty? Why or why not?
- What are some possible consequences of criminalizing this type of speech?
Check your answers to both questions using the answer key at the end of the chapter.
KEY TAKEAWAYS
- Speech under the First Amendment is any form of expression, such as verbal or written words, pictures, videos, and songs. Expressive conduct, such as dressing a certain way, flag burning, and cross burning, is also considered First Amendment speech.
- Five types of speech that can be governmentally regulated are fighting words, incitement to riot, hate speech, obscenity, and nude dancing.
- Statutes that prohibit fighting words and incitement to riot must be narrowly drafted to include only speech that incites imminent unlawful action, not future harm or general advocacy. Statutes that prohibit hate speech must be narrowly drafted to include only speech that is supported by the intent to intimidate. Statutes that prohibit obscenity must target speech that appeals to a prurient interest in sex, depicts sexual conduct in a patently offensive way, and has little or no literary, artistic, political, or scientific value. Nude dancing can be regulated as long as the regulation is reasonable, such as requiring dancers to wear pasties and a g-string.
EXERCISES
Answer the following questions. Check your answers using the answer key at the end of the chapter.
- A state statute enhances the penalty for battery if the crime is committed “because of the victim’s race.” To prove race-biased intent, it is frequently necessary to admit evidence of the defendant’s statements indicating racial hatred and intolerance. Does this statute violate the First Amendment’s free speech protection? Why or why not? Read the case on which this question is based,Wisconsinv. Mitchell, 508 U.S. 47 (1993). The case is available at this link:http://www.law.cornell.edu/supct/html/92-515.ZO.html
- Read Renov. American Civ. Liberties Union, 521 U.S. 844 (1997). This case reviews the constitutionality of a federal statute regulating Internet activity to protect minors. Why did the US Supreme Court hold that certain provisions o f the federal Communications Decency Act of 1996 were unconstitutional? The case is available at this link: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=96-511
- Read Holderv. Humanitarian Law Project, 130 S. Ct. 2705 (2010). Did the US Supreme Court uphold a federal statute prohibiting aid to terrorist groups? Why or why not? The case is available at this link: http://scholar.google.com/scholar_case?case=3116082426854631219&hl=en&as_sdt=2&as_vis=1&oi=scholarr
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