Freedom of Speech · Module 6
Disfavored Categories of Speech, Part III: Sexual Speech, and a Category the Court Refused to Create
Obscenity, indecency and child pornography: three doctrines that look alike and run on different justifications. Miller defines the category; Ferber leaves it behind entirely.
Assigned reading
Chemerinsky, Constitutional Law (7th ed. 2023) — 1227–69.
The casebook is the assigned text for this course. This page is the map: what the Module is doing, in what order, and what goes with it.
Topics
Obscenity and the Miller test. Child pornography and its rationale. Indecency, vulgarity and the medium-by-medium approach. Then the other half of the same question. Ferber shows the Court recognising a new unprotected category; Stevens and Brown show it being asked to do so again — for depictions of animal cruelty, and for violent video games sold to minors — and refusing. What the Court demanded in 2010 and 2011 that it did not demand in 1982, and what that tells you about how the categorical approach actually works.
Reading list
0 of 8 readings published · the rest are in preparation and will appear here as they are edited
- Opinion Miller v. California
- Opinion New York v. Ferber
- Opinion Ashcroft v. Free Speech Coalition
- Opinion FCC v. Pacifica Foundation
- Opinion Cohen v. California
- Opinion Reno v. ACLU
- Opinion United States v. Stevens
- Opinion Brown v. Entertainment Merchants Association
Classroom visuals
This module in Canvas
Modules · Quizzes · Discussion boards · Files and recordings
How to read this list
A case named without a marker is assigned as an opinion and is to be read in its entirety. Opinion (edited) means the Professor has cut it for length; the text on this site is the assigned text. Note means the case is not assigned as an opinion at all — its holding, its facts to the extent they matter, and its place in the doctrinal line are given in a note written for this course, and you are responsible for that note exactly as you are responsible for an assigned opinion. Most modules close with a Current case, a recent decision chosen because it shows the doctrine you have just read being applied at its live edge; current cases are assigned as opinions. You are responsible for all assigned required materials, including the notes, questions, problems and commentary that accompany the cases, whether or not we discuss them in class.