First Amendment States That Congress

First Amendment states that Congress is prohibited from passing laws that would abridge the freedom of speech. The Federal Communications Commission (FCC) argues that the First Amendment does not apply to obscene material, which is defined using a three-pronged test. Obscene material is differentiated by law from indecent and profane speech. In mainstream media, this distinction is often lost.

Loewy (1993) argues that obscenity is not necessarily speech -- the term is typically applied to nudity or pornography rather than speech -- and therefore should not be entitled to First Amendment protection, echoing the FCC's position. The definition of obscenity, however, does lend itself to pornographic speech and writing. A verbal or oral description of sexual acts would satisfy all three of the prongs that define obscenity. Loewy does not address this possibility.

I feel that the First Amendment should not enjoy First Amendment protection. Loewy (1993) notes that obscenity is not covered by the First Amendment because it is not speech. This makes it more difficult to determine whether obscene speech should be treated as speech or as obscenity. Lacking further clarification from the courts, it would appear that obscene speech is more commonly regarded as obscenity, and therefore not subject to First Amendment protection. If the wording of the First Amendment were more specific in defining speech, then clearly obscenity, if so defined, would have coverage. There is no such wording with reference to obscenity, however, and the precise definition remains vague even if it is understood to lack First Amendment protection, as Antonin Scalia has noted in references to video games that ran afoul of obscenity laws (Thierer, 2008). In the interests of upholding the moral standards of society, obscenity should remain without the protection of the First Amendment (Thierer, 2008). The standards for defining obscenity should be in the hands of the people, and therefore subject to change over time, but there is no reason to include them within the realm of protected speech.

With respect to commercial language, the major issue at hand is whether the government's powers to regulate commerce gave it the power to regulate speech concerning articles of commerce (UMKC, 2012). Some changes to this view have occurred in recent decades. Virginia State Board of Pharmacy (1976) clarified some of the speech that is protected, noting that laws cannot forbid the advertising of prices, taking the view that the First Amendment protects the right to receive information as well as the right to speech (UMKC, 2012). The ruling curtailing government's ability to regulate advertising was a good first step in expanding freedom of commercial speech.

At issue with commercial speech is also the problem of content neutrality, something that is fundamental to the First Amendment. If commercial speech is exempt from First Amendment protection, then it may also be devoid of content neutrality. The average American then must learn to distinguish between commercial speech and other forms of speech, because the nature of such speech is fundamentally different. The gradual reduction in regulation of commercial speech since the 1970s is a positive step in general that brings commercial speech more in line with the First Amendment. The limitations that still exist, such as limits on false claims in advertising, are generally reasonable and constitute sufficient regulation of commercial speech.

An interesting development in the regulation of commercial speech comes in the form of Citizen's United, where the extension of First Amendment protections, specifically relating to political advertising, were extended to corporations. While an extension of the reforms that have been ongoing since Pharmacy, the Citizens United case illustrates the special position that commercial speech enjoys with respect to the First Amendment. The underlying issue in this case is the influence of business in politics, rather than the regulation of business to consumer communications. However, even Citizens United is consistent with the long-run trend in aligning the communication rights of business with the First Amendment. It is reasonable to conclude, therefore, that Congress has enacted sufficient regulation on business communication. Given that businesses are comprised of individuals who are subject to First Amendment protection, for the government to treat business communication as distinct from personal communication, however noble the idea in spirit, creates a conflict that is not easily reconciled. If anything, reconciliation of this conflict will see a further reduction on the limits of corporate speech, which at present has more than enough regulation.

Sullivan (2010) notes that there are different views of the role of free speech in the Constitution. One view holds that free speech upholds political equality, the other that it upholds political liberty. The former view seeks for equality of speech outcomes, such that those with power should not suppress the speech of those without power. The latter view holds that all speech should be equal, and that the First Amendment does not allow for special regulation of speech just because the speaker has more wealth and power than his peers. The latter view is more consistent with the wording of the First Amendment, whereas the former relies on an interpretation of the spirit of the First Amendment. Introducing subjective interpretation to the First Amendment is not generally without the realm of reason -- I take the view that political liberty is the ultimate goal of the First Amendment.

A final First Amendment issue is with respect to music downloads. Some arguments contend that the chilling effect that liability penalties might have on protected speech (such as legal downloading) mean that such penalties violate the First Amendment (Snow, 2009). Seltzer (2010) argues that First Amendment protections that are part of fair use should supersede any subsequent acts, such as the Digital Millennium Copyright Act. This position is the most reasonable. The First Amendment has long been extended to include governmental action that would create such chilling effects, and with more than a decade of evidence before us it is clear that the DMCA does create significant chilling effects.