CHAPTER SEVEN: THE BOUNDARIES OF FREE EXPRESSION: OBSCENITY AND
LIBEL
Type: E
1. How do you define libel and obscenity?
2. What is a chilling effect and why does the Court want to avoid such an effect
3. Explain the three prongs of the Hicklin test for discerning if material is obscene. Is this a strict
or lenient test? Why?
4. Explain the three prongs of the Roth test for discerning if material is obscene. Is this a strict or
lenient test? Why?
5. How did Miller alter the Roth test? Did it make it easier or more difficult for the state to prove
materials are obscene?
Type: E
6. Explain 2 ways that government has attempted to enforce obscenity statutes.
7. Why has the Court never had the chance to rule on the constitutionality of seditious speech?
8. Why were media outlets unhappy with libel standards prior to Sullivan?
9. Prior to Sullivan what did plaintiffs generally have to do to collect damages in libel cases?
How do you think this affected the ability of plaintiffs to win suits?
10. Describe the standard the Court set out for proving libel in Sullivan. Does this standard make
it easier or more difficult to prove that speech is libelous?
11. How did Sullivan change the ability of citizens to criticize the government?
12. How is the standard for proving libel different between public figures and private citizens?
13. How does libel law in the U.S. compare to laws in other nations? How has the internet
changed the ability of plaintiffs to sue for libel?
14. How did Butts and Walker change to whom the actual malice standard applies?
15. Why do you think the Court ruled against Butts but in favor of Walker?
16. After Butts and Walker, how far did the definition of a public figure stretch?
17. What was the rationale for expanding the Sullivan test to include all matters of public
interest?
18. Why did Justice Marshall and others disagree with Justice Brennan’s opinion in
19. Explain how Gertz altered the expansive standard set out in Rosebloom?
Type: E
20. How did the Court’s view of who is a public figure change from Rosenbloom to Gertz and
Firestone?
Type: E
21. Have Gertz and Firestone made it easier for plaintiffs to prove libel? Explain why or why
not.
22. What were the main arguments Chief Justice Rehnquist used to justify his decision against
Falwell in Hustler v. Falwell? Are they persuasive?
23. How, if at all, did Hustler change the standard for proving libel?
24. How are cases involving child pornography different from typical obscenity cases? Should
they be treated differently? Why or why not?
Type: E
25. How has the Court applied its obscenity law to depictions of acts of violence or cruelty?
Should these fall under the same category of jurisprudence? Why or why not?
26. What effect did lowers courts have on the pornography industry in the 1950s? How did the
public react to such decisions?
27. Which definition of community standards is more intuitive, the one set out in Jacobellis or
the one set out in Miller? Why?
Type: E
28. What position did Justice Brennan take in his Paris Theater dissent? Is this is tenable
position? Why or why not?
29. What are the two objectives a state has with respect to child pornography?
30. What rationale did the Court use to distinguish regulation of child pornography from
generally obscene materials? I this a fair distinction? Why or why not?
31. How have states and local governments dealt with ensuring that kids are not exposed to
inappropriate movies, television shows, music, and video games? Has this strategy been
effective?
32. How has the Canadian Supreme Court dealt with obscenity in comparison to the U.S.
Supreme Court?
33. How has the Court dealt with the issue of regulating depictions of violence and cruelty? Are
the standards different if minors are involved or if minors may see the violence?
34. In Roth the Court rule that Community Standards are based on:
35. According to the Court in Memoirs v. Massachusetts an item is not deemed obscene if it:
36. In Miller the Court set which standard for the value of a work?
37. Which justice could not define obscenity but knew it when he/she saw it?
38. According to New York Times v. Sullivan a public official must prove ____ to sustain a libel
claim
39. Rosenbloom extended the New York Times test to include:
40. In Hustler Magazine v. Falwell the Court:
41. Libel and Obsceinity:
42. Why has the Court had a difficult time setting libel standards?
43. Prior to 1964:
44. Memoirs v. Massachusetts defined community as:
45. Why has the Court had a difficult time setting libel standards?
46. Potter Stewart has noted that he does not know how to define obscenity but he knows it when
he sees it. The Court has obviously taken a different view, and has tried to define what is obscene
and what is not. Trace the history of obscenity standards as they have changed between Roth and
Miller. Along with explaining how overall doctrine changes between these cases, you should
look at several specific issues. First, explain the specific changes in the definition of obscenity.
Second, consider the evolution of what a “community” is according to the Court. Third, discuss
the evolution of who must be affected in order for a work to be considered obscene (i.e.,
children, adults, specific groups, etc.). Finally, explain the distinction between obscenity being
“utterly without redeeming social value” and a work that lacks “serious artistic, political, or
scientific value.”
47. The Supreme Court has made clear that the standards for determining libel differ between
public and private people. Explain the rationale for this difference. Be sure to use support from
the cases you read in the chapter. Next, explain how the Court’s interpretation of protection from
libel has changed over time. Finally, why do you think the Court protects public figures and
officials differently than it protects private citizens. Provide case examples to support your
argument.
48. In January 2012 a new exhibit came to the St. Louis Art Museum. The exhibit contained,
among other things, photos of nude men and women depicted in a variety of poses, photos of
adults engaged in various sexual activities, and pictures of several nude men standing very close
to one another. Finally, there were several pictures that resembled recent advertisements by a
famous clothes designer. This last set of photos portrayed teenage children dressed in very little
clothing, who were also posed in allegedly “erotic” poses. The City Commission on Decency
reviewed the exhibit as it was being constructed in the museum. This commission was set up in
the early 1980s as a response to the growing use of “sex in art.” It is the duty of the commission
to review any potentially obscene or indecent art exhibits that may be shown before the exhibits
can be open to the public. While the commission only has the power to review and recommend
to the Mayor about what it believes to be obscene or indecent material, the Mayor has always
followed its rulings. The decisions of the commission are based on the Public Standards of
Decency found in St. Louis statute 4.5.7. After a public hearing where the new exhibit was
described in detail to a group of interested citizens, the decency commission made two
recommendations. First, the photographs of the adult males and the teenage children could not be
a part of the exhibit. In short, they would have to be taken down before the exhibit could open to
the public. Second, the commission recommended that the exhibit only be open to citizens over
the age of 18 and, even with the consent of an adult, children under 18 could not enter the special
exhibit area. A 17-year-old senior at a local high school sued along with the artist who created
the exhibit. Both claimed their First Amendment rights had been violated. The case comes to the
Supreme Court with a variety of issues, but with one main question. Does St. Louis statute 4.5.7
violate the First Amendment rights of the artists as well as of the children who want to see the
exhibit? Why or why not? An, Ap
49. In 2012 a number of homeless people were allowed to live on Ex Ante University property,
which led to disputes with neighboring businesses and owners. The West Minster Herald
published a series of articles describing the dispute. The articles also called the school a
“sensuality” school (because it offers courses in sensuality, “lifestyles,” “niceness and
meanness,” and “mutual pleasurable stimulation of the human nervous system”). It also quoted a
former student as saying that Ex Ante students were given illegal drugs and coerced into
prostitution. Finally, the article noted that the university had filed a libel lawsuit over the former
student’s allegations. Ex Ante University sued the Herald and the reporters who wrote the article
in 2003, arguing that the newspaper libeled the school. The paper argued that it is protected by a
state law which provides for quick dismissals of meritless lawsuits intended to silence free
speech, and that this is such a case. The school’s lawyers argued that the law is intended to
protect ordinary citizens and not the news media against meritless lawsuits. They also claimed
that the Chronicle’s statements were false. As a justice on the Supreme Court how would you
rule? An Ap
New York Times v. Sullivan (1964)
Relevant Case Facts:
The March 29, 1960 edition of the New York Times ran an advertisement to publicize the civil
rights movement and to raise money for the cause. Sullivan, an elected commissioner in
Montgomery, Alabama took offense to the ad because it suggested the police participated in
some wrongdoing. Sullivan sued for libel arguing that the ad contained falsehoods – which it did.
At trial the judge charged the jury with instructions that the ad was “libelous per se,” meaning
that because it contained lies, it was unprotected speech. He then said that if the jury found the
statements pertained to Sullivan the Times could be held liable.
Legal Question: Does the rule of liability, as applied to an action brought by a public official
against critics of his official conduct, abridge the freedom of speech and of the press that is
guaranteed by the First and Fourteenth Amendments?
Reasoning:
Concurring (Black and Douglas):
Gertz v. Welch (1974)
Relevant Case Facts:
Gertz sued the John Birch Society for a story it published in American Opinion that suggested he
was a communist. He argued that the story was false and bad for his career.
Legal Question: Is a newspaper that publishes defamatory falsehoods about an individual who is
neither a public official nor a public figure liable for injury inflicted by those statements?
Reasoning:
Dissenting (Brennan):
Dissenting (White):