Hate speech, unless it incites or provokes violence, is protected by the Supreme Court. However, the Supreme Court considers obscenity to be an unprotected category of speech, even though defining obscenity has proved nearly impossible.
Roth v. United States: Obscenity and the Supreme Court
The Supreme Court first addressed obscenity in Roth v. United States (1957). In the majority opinion, Justice Brennan writes that
“All ideas having even the slightest redeeming social importance – unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion – have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”
This clearly conflicts with the notion of a marketplace of ideas, a philosophy which values any opinion as contributing to pursuit of the truth. According to the philosophy of a marketplace of ideas, ideas "competing" in free speech lead to truth and progress. The idea of a marketplace of ideas was developed by John Stuart Mill, a nineteenth century English philosopher and political theorist.
It could be argued that obscenity is simply without content or opinion. Justice Brennan defines obscenity as “material which deals with sex in a manner appealing to prurient interest”.
But other arguably useless speech is protected, and who decides whether obscenity holds any redeeming meaning? As Mill notes, “The usefulness of an opinion is itself matter of opinion; as disputable, as open to discussion, and requiring discussion as much, as the opinion itself” (25).
The Miller Test: Determining Whether Speech Is Obscene
Miller v. California (1973) created the Miller Test, which remains current law for determining whether speech is considered obscene. Speech is regarded as obscene if it meets all three requirements of the test:
“(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
Although perhaps it is more comprehensive than Roth’s definition using “prurient interest”, the Miller Test is incompatible with the concept of the marketplace of ideas and the distinction between self- and other-regarding acts, articulated by Mill and evident throughout the Supreme Court’s rulings on hate speech. According to the marketplace of ideas, all speech has value because it contributes to public discourse.
The Miller Test: Valuing Majority Opinion
The Miller Test values majority opinion over minority dissent. However, it is not clear why community standards should overrule a minority opinion.
Mill writes that “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind” (20).
But the Miller Test criminalizes the minority, essentially permitting the government to punish sexual dissenters. This discrimination offends viewpoint neutrality, a key element in hate speech law.
Surely Nazi demonstrations violated the standards of Skokie, Illinois, and would violate the standards of most communities. What differentiates sexually explicit expression from appallingly offensive hate speech?
The test also assumes that coherent and established community standards exist; in reality, however, communities include a diverse range of conflicting opinions and preferences. And in today’s world of online communication, geographic boundaries appear increasingly inadequate.
The Subjectivity of Literary and Artistic Value
The third requirement is also vague; who should determine whether a work has “literary, artistic, political, or scientific value”? Literary and artistic judgments are inevitably subjective.
It ultimately seems very unlikely that a person could determine whether or not questionable material would be considered obscenity under the vague requirements of the Miller Test.
As Justice Douglas argues in his dissent, “no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned. […] To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.”
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Sources
Gerald Gunther , Kathleen M. Sullivan. Constitutional Law. University Casebook Series. 2007.
John Stuart Mill, ‘On Liberty’ and Other Writings. Cambridge Texts in the History of Political Thought, 1998.
Rebekah Richards - Rebekah Richards has published fiction and nonfiction in the Atlanta-Journal Constitution, Brandeis Law Journal, Where the Children Play, ...
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