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The First Amendment

In the United States, freedom of expression, artistic and otherwise, is ultimately governed by the First Amendment to the U.S. Constitution:

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 for a redress of grievances.

This guarantee of freedom of speech has been articulated in numerous Supreme Court cases, which play an important role in the history of freedom of artistic expression. Here are a few of the more important decisions:

    Symbolic Speech Protected
    In 1931, in Stromberg vs. California, the Court determined that "symbolic speech" is protected under the Constitution. The case was spurred by the conviction of a woman who had displayed a red flag in a public place, an action associated with anarchist groups and then criminal under California law.

    The Court found parts of the California statute unconstitutional and by implication ruled that the display of symbols could be protected speech. As applied to the arts, this means that not just words, but paintings, music, theatrical performances, and other types of artistic expression are protected by the First Amendment's guarantee of freedom of speech.

    Obscenity Convictions Constitutional
    In 1957, in Roth vs. United States, the Court determined that prosecution for possession or distribution of obscene material is lawful, and that obscene speech is not protected under the Constitution. Sam Roth, a publisher and distributor of magazines and books, had been indicted in 1954 for using the mail to advertise and distribute material with sexual content, notably Aubrey Beardsley's Venus and Tannhäuser. His conviction was upheld.

    The "Three-Pronged Test" for Obscenity Established
    In 1973, in the most important case on freedom of expression, Miller vs. California, the Court established the "three-pronged test" for obscenity, which still applies today. The case concerned bookseller Marvin Miller's conviction under California obscenity laws for distributing illustrated books of a sexual nature.

    In Miller, the Court's decision stated that obscene material is not protected by the First Amendment (a reaffirmation of Roth) and that such speech may be regulated by the state under certain circumstances. In order to meet the definition of obscene material articulated in this case, three conditions must be met:

    (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

    (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

    The Court also determined that a jury may measure "the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a 'national standard.'" This establishes a role for the community in making decisions about obscene material.

    Obscenity is a narrow category describing materials that meet all three prongs of the definition above. Such material, even if some describe it as art, may be deemed obscene and banned by the state.

    "Indecency" is a broader term encompassing material which does enjoy some measure of Constitutional protection, but may still be restricted. For instance, some might find violent images objectionable, even though they do not appeal to prurient interest and thus are not obscene under Miller.

    No "three-pronged test" for indecency exists, and although the Court has considered cases involving the arts and proposed standards of decency, the issues of what such standards mean and how they are to be applied have not been resolved.

    School Book Selection Covered by First Amendment
    In 1982, after years of appeals, the Supreme Court ruled, in Board of Education vs. Pico, that "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion." The case was brought by students opposing a directive made by the Island Trees School District in Levittown, N.Y. ordering the removal of books considered "anti-American, anti-Christian, anti-Semitic, and just plain filthy" from school libraries.

    Speech on the Internet Protected
    In 1997, in Reno vs. ACLU, the court found the The Communications Decency Act, passed by the U.S. Congress in 1996 and designed to protect minors from harmful material on the Internet, unconstitutional, ruling that the act abridges the First Amendment.

    The full text of these and other Supreme Court decisions can be found at the Supreme Court Collection in Cornell University's Legal Information Institute.

    Audio files of the arguments for some of these cases may be available at the Oyez Project at Northwestern University.

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