First Amendment · WikiFramers

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

  1. Opinion Miller v. California in preparation
  2. Opinion New York v. Ferber in preparation
  3. Opinion Ashcroft v. Free Speech Coalition in preparation
  4. Opinion FCC v. Pacifica Foundation in preparation
  5. Opinion Cohen v. California in preparation
  6. Opinion Reno v. ACLU in preparation
  7. Opinion United States v. Stevens in preparation
  8. Opinion Brown v. Entertainment Merchants Association in preparation

Classroom visuals

Slides for this module PDF

This module in Canvas

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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.