First Amendment Obscenity Tests, Scrutiny Levels & Key Cases

Matching

• Abrams (Bad Tendency Test)
• Clark v. CCNN (homeless people protest)
• Gitlow (applied bad tendency test to states)
• Boy Scouts v. Dale (permitted it to be boys only)
• Krishna (airports not a public forum)

Short Answer

Miller Test and Historical Standards

• Hicklin Test

  Prior to Supreme Court review of obscenity, courts followed the Hicklin Test, which asked whether the material would "corrupt those whose minds are open to such immoral influences" and whether it would be harmful in the hands of vulnerable readers.

  • Determined to restrict artistic expression in broad terms.
• Prurient Interest Test

  Before the Court adopted the Miller standard, the test shifted to whether, to the average person applying contemporary community standards, the material appeals to prurient interest.

  • Problem: the Court never reached a consensus on a precise definition of "prurient interest."
• Miller Test (Current Three-Part Standard)
  • 1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
    • Uses a reasonable person standard.
  • 2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law.
  • 3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Compelling Interest, Rational Basis, and Strict Scrutiny

• Compelling State Interest

  The Court has held that a state may have a compelling interest when protecting public safety, public health, or constitutional rights of others (for example, the protection of children). The Court evaluates such interests using tests like strict scrutiny or, in other contexts, rational basis review.

  • Cases:
    • New York v. Ferber (1982) — The Court held that the state has a compelling interest in protecting children from sexual abuse and found a close connection between such abuse and the use of children in the production of pornographic materials.
    • Ashcroft v. Free Speech Coalition — The Court struck down as overbroad a provision of federal law that banned virtual child pornography as well as materials employing live subjects.
• Strict Scrutiny

  Strict scrutiny is applied to laws that burden political speech or other fundamental rights. Under this standard, the government must show the law is narrowly tailored to serve a compelling governmental interest.

  • Government must show the restriction is the least restrictive means to achieve the interest and is narrowly tailored.
  • Cases:
    • R.A.V. v. City of St. Paul — The Court struck down a content-based ban on certain symbolic speech because the law was not narrowly tailored and was overbroad.
    • Virginia v. Black — The Court allowed restrictions where burning a cross was used to intimidate and cause imminent disruption; context and intent mattered for limiting speech.
• Rational Basis

  Under rational basis review, a law will be upheld if it is rationally related to a legitimate government interest. This standard is typically applied to economic regulations and certain categories of nonfundamental rights.

  • Commercial speech (speech done to make a profit) receives a lower level of protection and often is reviewed under a less stringent standard than political speech.

Key Concepts and Takeaways

• Bad Tendency Test: Early test (Abrams, Gitlow) allowing restrictions that have a tendency to result in illegal action.
• Public Forum Analysis: Place-based distinctions (e.g., airports, parks) affect what speech restrictions are permissible (see Krishna).
• Associational Rights: Cases such as Boy Scouts v. Dale address expressive association and membership exclusions.
• Context Matters: Whether speech is political, commercial, obscene, or threatening determines applicable scrutiny and permissible regulation.

Related Cases Mentioned

• Abrams (Bad Tendency Test)
• Clark v. CCNN (homeless people protest)
• Gitlow (applied bad tendency test to states)
• Boy Scouts v. Dale (membership exclusion)
• Krishna (airports not a public forum)
• New York v. Ferber
• Ashcroft v. Free Speech Coalition
• R.A.V. v. City of St. Paul
• Virginia v. Black

Notes

The content above preserves the original items and explanations while correcting spelling, grammar, and capitalization. Headings and lists are organized to improve readability and SEO for searches related to First Amendment obscenity tests, standards of review, and landmark cases.