Basic First Amendment Principles

1.  Not all methods of mass communication can be regulated to the same extent because First Amendment law can be medium specific. For example, radio and television broadcasting is a less protected form of mass communication than newspaper publishing. The internet has been given the same degree of protection as newspapers rather than the lesser protection of broadcasting.

2.  Generally speaking, strict scrutiny (the government must use a narrowly tailored (least restrictive) means to achieve a compelling government objective) is used to review the constitutionality of content-based bans on speech protected by the First Amendment.

3.  A content-based ban singles out speech identified by its content and is aimed at preventing the primary effects of the speech on the viewer or listener. These primary effects are the reactions to the speech by the audience who is exposed to the speech, whether those reactions are shock, outrage, enjoyment, moral corruption, disbelief, incomprehension, anger or any other reaction.

4.  Obscenity (as defined in Miller v. California) and child pornography (where an actual child is used in the production of the pornography) are not protected by the First Amendment. The government is free to regulate these categories of speech as long as it has a rational basis for doing so.

5.  Indecent speech (sexually explicit, but not obscene speech) is protected by the First Amendment, at least as to adults. This includes speech that is harmful to minors as defined in the Child Online Protection Act and other statutes.

6.  Children do not have the same First Amendment rights as adults although they have First Amendment rights. The lesser rights of minors have been recognized in cases involving sexually explicit speech. Speech can be obscene as to minors even though it is not obscene as to adults. Recently, the Supreme Court refused to treat violent video games as unprotected speech as applied to minors, distinguishing between violence and sex. One additional area where the rights of minors are reduced is in the public school setting. Elementary and secondary public school students have greatly reduced free speech rights while at school or under the control of school authorities.

7.  All vague statutes fail to give fair notice, however, vague statutes that infringe on expression also have a chilling effect on speech because they encourage speakers to censor their own speech because of uncertainty over the scope of the statute. Therefore, vagueness is judged more critically when free speech rights are at issue. A court is more likely to find a statute to be unconstitutionally vague when it intrudes on speech rights and uses words that have no objective meaning, but depend on a subjective evaluation of the speech at issue. Examples of such subjective language include speech regulated because it is shameful, disgraceful, outrageous, annoying, scandalous, and other similar words.

8.  The least restrictive means to achieving the goal of protecting children would be a means that prevents child access while not infringing on adult access; such a means is not always available as a practical matter. This is particularly true in the current architecture of the internet where unrestricted access is the norm.