So now that I have found my blog again...

I thought I would use this space to share the latest paper I wrote for Dimensions of Justice:

Examining Supreme Court Decisions
-THE FIRST AMENDMENT-
Possibly no other Amendment is more well known and publicly valued than the First. Freedom of speech has been theorized to be one of the most powerful Amendments and without it no other rights could exist. Because of the reverence for freedom of speech (also known as freedom of expression-including other rights listed in the First Amendment), many theories have developed as to why speech has been established as such a basic and fundamental right. Other than breaking away from traditions of English society, there is little knowledge as to the framer's intentions while designing the rights in the First Amendment (Chemerinsky 924). This leaves the courts to interpret the law and make hard decisions on hard cases in attempts to make resolution of competing rights and interests.
United States v. Playboy Entertainment Group, Inc. (Chemerinsky 935) involved Section 505 of the Telecommunications Act of 1996 which required cable television operators providing channels "primarily dedicated to sexually-oriented programming" either to "fully scramble or otherwise fully block" those channels or to limit their transmission to hours when children are unlikely to be viewing, set by administrative regulation as between 10 p.m. and 6 a.m (2). Before this law was passed operators already had in place a method of scrambling these channels to limit their access. Through this scrambling method portions of the programming could sometimes still be heard or seen. This was called "signal bleed." To protect children from exposure to images or sound that might come through due to signal bleed, Section 505 was established.
Playboy Entertainment Group, Inc. filed a suit claiming that Section 505 was unconstitutional in that it was a content-based restriction which interfered with their right to freedom of speech. They claimed that there was a less restrictive alternative for the government to further its interest which lied in Section 504 of the same Telecommunications Act. Section 504 gave paying customers the option to fully scramble or block any channel completely that they did not wish to receive at no charge (2).
The Court held that Section 504 was just as effective as Section 505 for viewers who did not want the programming in question. The freedom of speech at hand was examined under strict scrutiny because it was content-based. It was the burden of the government to prove that the regulation was the only effective way to achieve its goal in protecting families with children from the exposure to sexually explicit material. Because Section 504 was an effective alternative, the government failed to prove Section 505 was necessary to reach its goal.
Another similar case concerning freedom of speech involving child protection from expression of a sexual nature is that of Ashcroft v. American Civil Liberties Union (Chemerinsky 935). Like United States v. Playboy Entertainment Group, Inc., which preceded this case, it parallels in its fight to resist a content-based governmental restriction of speech.
Ashcroft v. American Civil Liberties Union confronted Congress' enactment of the Child Online Protection Act (COPA) of 1998, which states any person who knowingly posts, for "commercial purposes," on the World Wide Web material that is "harmful to minors," without providing the affirmative defense of commercial Web speakers who bar entrance to proscribed Web pages by "requiring use of a credit card" or "any other reasonable measures that are feasible under available technology," will be imposed a $50,000 fine and six months in prison (2).
The court held that computer filtering systems were a less restrictive way for families to protect their children from viewing offensive material. In fact, the Court assessed that it was a better alternative because it not only restricted materials from U.S. based companies, but also those overseas; further more, COPA's continued enactment would simply cause U.S. based companies to move overseas and continue business in the same manner (2).
Interestingly, both case decisions were made according to a "least restrictive" way for enterprises to attain free speech and the parent's rights to access freely other's expressions of free speech. Traditionally, the courts have taken extreme measures to protect children. However, the children were not the only focus. In the latter case mentioned, Ashcroft v. American Civil Liberties Union, parents had the right to turn internet filtration systems on or off, depending on their own personal desire to acquire sexual material via the internet without the constant worry of their children's access. Conversely, United States v. Playboy Entertainment Group, Inc. did not take into consideration the parental viewing preferences. Parents with children would have to sacrifice their own viewing of programming dedicated to sexual material by using the methods expressed in Section 504. There was no court consideration of the interests of parents who might benefit from Section 505, which still allowed them access in the night hours to programming for which they already pay.
Clearly there are many different parties who hold competing interests. And embedded within both these cases is exactly that: a multifaceted list of competing issues. First, we have the interest of the government to protect its citizens on a whole-in this case, specifically children-from the deteriorations of the "moral fabric of society." Second, one must take notice of the enormity and implications that may rise from sacrificing a fundamental right-specifically freedom of sexual expression-at the hand of a governmental goal. It also must not go without mentioning that commonly freedom of speech of a sexual nature has been historically less protected. Let us, though, take note of the word "historically."
In the case of Roth v. United States (1), decided in 1957, Justice Brennan clarifies protected speech with regards to obscenity: "...sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to the prurient interest" (Chemerinsky 1017). The Court defined prurient as "material having a tendency to excite lustful thoughts" (Chemerinsky 1017). Few would argue that either the case of United States v. Playboy Entertainment Group, Inc. or Ashcroft v. American Civil Liberties Union was not brought before the court somewhat on the behalf of catering to audiences with "prurient interests." Roth reaffirmed what the Supreme Court had previously held for years: "obscenity is a category of speech that is unprotected by the First Amendment" (Chemerinsky 1016). Although the debate continues as to what is deemed obscene, both United States v. Playboy Entertainment Group, Inc. and Ashcroft v. American Civil Liberties Union redefined how the First Amendment's protection of freedom of speech applies to "obscene" material.
Ultimately, these hard cases entailed restriction of speech on the basis of content, which both Section 505 of the Telecommunications Act and COPA did, and this necessitates application of strict scrutiny. Both laws sought to limit access to sexual material (content-based) to minors by creating policies that specifically targeted sexual expression. Had these laws been content-neutral, only intermediate scrutiny would have been applied. The language entrenched in both Acts quickly ruled out any dispute that these cases were not content-based.
We must then refocus on the core issue in both cases. It was not that the material was of a sexual nature; simply that the Acts restricting the material were content-based. The policies, indeed, restricted speech because it was sexual, but regardless of the sexual content, the importance laid on the principle of a fundamental right being restricted-whatever nature it might be.
All of the cases mentioned retaliated against laws which they feel inflicted on the fundamental rights they possessed mapped out in the First Amendment. They fought against society's norms and values which they felt conflicted with their rights. When rights compete, society must also decide which rights they are willing to sacrifice in order to protect others. In these cases, freedom of speech was at the foremost of importance. Eventually balance must be found to create some sort of a solution. Though there may never be completely satisfactory decisions to all parties involved in these cases, society will continue to shape what it values through them.

Academic Resources
Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 3rd. Aspen Publishers, New York, NY. (2006)
(1) http://www.oyez.org/
(2) http://www.law.cornell.edu/