Guide to be applied to the Forum users.

Lawful Regulation on Speech

Obscenity. Speech defined as obscenity is outside the boundaries of First Amendment protection. As defined by Miller v. California, obscenity is speech that (1) the average person, applying contemporary community standards, would find, taken as a whole, to appeal to the prurient interest; (2) depicts or describes in a patently offensive manner specifically defined sexual conduct; and (3) lacks as a whole serious literary, artistic, political or scientific value. The definition of obscenity, developed in 1973, focuses on a local "community standard," and has proven to be the crux of litigation surrounding internet censorship cases, which by their nature cannot depend upon local community standards. Further information is available at EPIC's COPA Litigation Page.

Fighting Words. Speech likely to provoke an average listener to retaliation, and thereby cause a breach of peace, falls outside the protection of the First Amendment because the words have no important role in the marketplace of ideas the freedom of speech is designed to promote. Chaplinsky v. New Hampshire.

Commercial Speech. Commercial speech, which was warranted no protection by the Court until 1980 in Central Hudson Gas & Electric, is now protected under an intermediate level of scrutiny because the motivation to market goods and services is believed sufficient to overcome any chill caused by government regulation. The government can ban deceptive or illegal commercial speech; any other regulation must be supported by a substantial interest to be achieved by restrictions, regulations in proportion to that interest, and a limitation on expression designed carefully to achieve the state's goal.

Incitement ("clear and present danger"). The government can regulate speech that is intended and likely to incite "imminent lawless action," or where the speech presents a "clear and present danger" to the security of the nation. Brandenburg v. Ohio.

Relevant case law:
Schenck v. United States. Upholding defendants' convictions under the Espionage Act for distribution of anti-war materials during World War I because even "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
Time Place and Manner. Content-neutral regulation of the time, place, or manner of speech that does not interfere with the message being delivered and leaves open adequate alternative channels of communication is permissible.

Libel/Slander. In New York Times Co. v. Sullivan, the Supreme Court recognized that expansive libel protection chills speech because speakers will be less likely to publish if they can be punished merely for being wrong. Therefore, the First Amendment requires public officials and public figures prove "actual malice" (knowing or reckless disregard for the truth of the statement). Public figures include those with fame, notoriety, and those who have injected themselves into the public debate on an issue. However, in Gertz v. Welch, the Court limited this expansive protection to public figure, not public causes: a publisher of defamatory statements about an individual who is neither a public official nor a public figure may not claim protection against liability for defamation on the ground that the statements concern an issue of public or general interest. Private figures must prove that a statement is false, and that the speaker engaged in some degree of negligence (mere falsity of the statement is insufficient). Laws vary state to state.

Relevant case law:
Hustler Magazine v. Falwell. Public figures and public officials may not recover for the tort of outrage (intentional infliction of emotional distress) without proving actual malice.
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Kent A. Guske
Worth-Net
Sylvester, GA