The First Amendment to the US Constitution provides that Congress shall make no law that restricts freedom of expression or of the press. Such wording restricts state power as a greater and a lesser degree compared to what it could do in this regard if the wording used in the literal sense.
The said formulation limits the power of the state to a greater extent in the sense that it applies not only to Congress but to all branches of the federal government, all branches of state governments and local authorities. The wording in question, limit state power to a lesser extent in the sense that it provides no protection for one type of self-expression and provides only limited protection to other species.
Thus, it can be argued that the Supreme Court has interpreted the guarantee of freedom of speech and press in order to not provide protection or to provide only limited protection for some types of self-expression. For example, the Supreme Court ruled that the First Amendment does not provide protection of obscenity, child pornography, or self-expression, which is the promotion of use of force or violation of the law in cases, where such advocacy is directed to inciting the commission of unlawful acts or inevitably leads to their occurrence, and has resulted in the existence of the likelihood of incitement to such acts or their commission (“Freedom of Expression in the United States”, 2013).
Apparently, obscenity is a unique concept in the sense that it is the only kind of speech and expression, which the Supreme Court denied the protection afforded by the First Amendment, regardless of whether the obscenity does harm to individuals. According to the Supreme Court, there is evidence showing that during the period of the adoption of the First Amendment protection, destined for the speech and the press, did not extend to obscenity. Consequently, the latter can be prohibited only in connection with the adoption of one or another legislative body of the decision that the ban on obscenity protects society's interest in the maintenance of order and morality. The Supreme Court defined three parts of obscenity, called the Miller test.
In 1973, in the course of the case of Miller v. California US Supreme Court defined obscenity as an expression, which is an ordinary man, guided by moral standards accepted by society at a given time, is seen as:
1) aimed at the incitement of lust;
2) offensive image depicts or describes sexual relations;
3) generally has no significant literary, artistic, political or scientific value (Miller v. California 413 U.S. 15”, 1973).
The court evaluates each component separately and recognizes saying obscene only if it meets all the criteria. Under these stringent standards are rarely able to prove obscenity statements in court. For example, the US Supreme Court again said that the First Amendment constitutional protection does not apply to obscene speech, but delivered with such a narrow definition of obscenity that is actually just expanded thereby previously approved the boundaries of freedom of expression. From this point on, any materials that are literary, artistic, political or scientific value are subject to completely unrestricted and free dissemination.
Also, pornographic images, producing the impression that they depict children engaged in activities clearly of a sexual nature, including those created in the image computer, do not fall under the protection of the First Amendment, as the state concern for the protection of children is enhanced by prohibiting the possession or distribution of such materials, for many reasons, suitable under the definition of "child pornography", Ferber of the case. As a result, the court dispensed with the test for obscenity in the Miller v. California case and upheld the state law banning the production and advertising of any images of children involved in, sexually explicit or obscene demonstration of genitals. The court upheld the fact that child pornography is not protected under the First Amendment. Recognition and classification of child pornography as a category of material to which the action of the First Amendment does not apply, is at odds with previous decisions.
The question of whether, in any case, it is protected by the First Amendment, and what not, often depends on the content of the speech itself. (“New York v. Ferber, 458 U.S. 747”, 1982) In 1982, when the conclusion of Ferber’s case this was formulated, a technology that allows to create visual images of child sexual activity indistinguishable from real photos of real children directly involved in creating these pictures did not exist. Subsequently, despite the wording of the above conclusion on the case Ferber that distinguishes images of sexual relations with nature and other visual images of these contacts, it becomes clear that those and other images are not protected under the First Amendment. As has been evidenced in the Commission, both before and after the decision, child pornography, created with the help of a computer and pornography, virtually indistinguishable from photographic images of these children involved in actions explicitly sexual nature, have the same effect as in children who show these images, and on child molesters and pedophiles who are creating and using these materials.
Thus, created with the help of computer child pornography is a danger to the welfare of children, comparable to the risk posed by real child pornography. Thus, the government is interested in the same way as the prohibition of child pornography, created on the computer, and child pornography established, with the participation of these children.
As for modern marine affairs regarding the first amendment, a good example is the case of Elonis v. United States. Anthony Elonis’ history began in 2010. Then he left the social network chaotic comment about his wife's murder, shooting at the children's park Dorney (PA) and their throats cut FBI agent. The text was drawn up with a large number of semantic errors, so that other users cannot understand what Elonis talks about events already committed or just planned.
However, some people have called the police, who contacted the FBI. Elonis was arrested, the police he was questioned and detained. The investigation revealed that the author of the comment was not planning any crime. Nevertheless, he was indicted on a number of very serious articles. Court Prosecutor's Office acknowledged the arguments very convincing and Elonis was sentenced to 44 months in prison for threats against his ex-wife, an FBI agent and first-graders-children, published to Facebook. In prison, the author of the comments caught the attention of human rights organizations and lawyers. Eventually, it became clear that Elonis is a mentally ill person.
However, members of the Supreme Court, having examined the submitted texts, came to the conclusion that this is a literary work: Elonis often express himself in the form of rap. The Court found that there is a poem, not a real threat, and overturned the verdict (“Elonis v. United States, 575 U.S. ___”, 2015). American experts believe it is an important precedent judgment. Human rights activists believe that the comments of Elonis protected by the First Amendment of the Constitution, which bans infringe on freedom of speech.
Thus, the First Amendment protects citizens against restrictions on freedom of expression by the government (“Freedom of Expression in the United States”, 2013). It does not apply to situations in which one individual limits statements of another individual. The US Constitution protects against government persecution even the most controversial and offensive forms of expression, allowing the regulation of freedom of expression only in limited and narrowly defined circumstances.
References
“Elonis v. United States, 575 U.S. ___”. (2015). U.S. Supreme Court, No.13-983. Retrieved from https://supreme.justia.com/cases/federal/us/575/13-983/opinion3.html
“Freedom of Expression in the United States”. (2013). IIP Digital, US Embassy. Retrieved from http://iipdigital.usembassy.gov/st/english/pamphlet/2013/04/20130416145829.html#a xzz4VYhTqAmK
“Miller v. California, 413 U.S. 15”. (1973). U.S. Supreme Court, No. 70-73; United States Report. Retrieved from https://law.resource.org/pub/us/case/reporter/US/413/413.US.15.70-73.html
“New York v. Ferber, 458 U.S. 747” (1982). U.S. Supreme Court, No. 81-55; United States Report. Retrieved from https://law.resource.org/pub/us/case/reporter/US/458/458.US.747.81-55.html
