New York Times v. Sullivan (1963) By: Carmen Vaca

Unprotected Speech Speech that is subjected to regulations issued by the government Unprotected speech can be classified into obscenity, fighting words, fraudulent misrepresentation, advocacy of imminent lawless behavior, and defamation. Threats are also treated as unprotected speech because they constitute intimidation.

L.B. Sullivan Lester Bruce Sullivan ( ) was the Montgomery, Alabama Public Safety commissioner and also a widely known segregationist.

Background On March 29, 1960, the NYT printed an advertisement defending Martin Luther King Jr. against an Alabama perjury indictment. The advertisement stated that the Alabama State Police had arrested Martin Luther King Jr. seven times, yet he had only been arrested four times at that point. Although L.B. Sullivan wasn’t named in the advertisement, the inaccurate criticism of the actions by the police was considered as defamation against him, leading to him file a libel suit.

The Decision Under Alabama law, Sullivan did not have to prove he had been harmed, and a defense claiming that the ad was truthful was unavailable since the ad had factual errors. Sullivan won a $500,000 judgment.

The Decision The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). The Court ruled for The Times, 9–0.

Consequences NYT v. Sullivan established the actual malice standard. The Supreme Court adopted the term "actual malice" and gave it constitutional significance while defining it based on prior decision.

Works Cited making-constitutional-history/n88.xml making-constitutional-history/n88.xml malice-and-negligence malice-and-negligence

Miller v. California (1973)

Marvin Miller Operator of one of the largest mail-order pornography business who conducted a mass mailing campaign to advertise “adult” material illustrated books.

The Decision Miller was convicted by the Superior Court of Orange County, California for violating California Penal Code. Mailing unsolicited sexually explicit material fulfilled the criteria for obscenity formulated in a prior case – Memoirs v. Massachusetts. Jury was forced to analyze California’s community standards for obscenity.

The Decision The case was affirmed on appeal. The content that was mailed was confirmed to be sexually explicit. It was found that the work, as a whole, did not have any serious literary, artistic, political, or scientific value and therefore did not obtain the protection of the first amendment (freedom of speech). This was considered a misdemeanor: knowingly distributing obscene material Ruling: 5 votes for Miller, 4 votes against

Consequences The Court acknowledged "the inherent dangers of undertaking to regulate any form of expression," and said that "State statutes designed to regulate obscene materials must be carefully limited.” They devised 3 criteria that must be met in order for something to be legitimately subject to regulation for obscenity: 1) Whether the average person applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest 2) Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by state law 3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

Consequences This obscenity test overturns the definition of obscenity set out in the Memoirs decision, which held that "all ideas having even the slightest redeeming social importance... have the full protection of the guaranties [of the First Amendment]" and that obscenity was that which was "utterly without redeeming social importance.”

Works Cited /1971/1971_70_ /1971/1971_70_73 law/constitutional-law-keyed-to-sullivan/freedom-of- speech-why-government-restricts-speech-unprotected- and-less-protected-expression/miller-v-california-4 law/constitutional-law-keyed-to-sullivan/freedom-of- speech-why-government-restricts-speech-unprotected- and-less-protected-expression/miller-v-california-4