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In , 529 U.S. 277, 120S. Ct. 1382, 146 L. Ed.2d 265 (2000), the U.S. Supreme Court ruled that a ordinance that barred nude-dancing establishments did not violate the First Amendment, again using the symbolic-expression standard. In that case, the city of Erie, Pennsylvania, had not sought to ban the expressive conduct itself (nude dancing), thus the zoning law was content-neutral. The city had a right under its to protect public health and safety. It also had a legitimate reason for the law: the harmful, secondary effects of nude dancing establishments in a community. Finally, the government interest was unrelated to the suppression of free expression,

of the free speech right would in itself infringe on their 1st Amendment rights
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America's Founding Documents | National Archives

Commercial speech, such as advertising, receives more First Amendment protection than fighting words and obscenity, but less protection than political oratory. Advertising deserves more protection than the first three categories of expression because of the consumer's interest in the free flow of market information (, 425U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 [1976]). In a free-market economy, consumers depend on information regarding the quality, quantity, and price of various goods and services. Society is not similarly served by the free exchange of obscenity.

The First Amendment is part of the Bill of Rights, which came into effect in 1791
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involvement in the Viet Nam War. The Court agreed that was engaged in an expressive activity that triggered a First Amendment analysis. The Court noted, however, that O'Brien was punished for his "conduct" (the burning of the card) and not for what he was trying to say about the war. The Court offered in a test for analyzing cases in which both speech and conduct elements are present:

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A minority of Founding Fathers adhered to the view articulated by : "The security of the freedom of the press requires that it should be exempt, not only from previous restraint of the executive, as in Great Britain; but from legislative restraint also; and this exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws." Madison was concerned that authors would be deterred from writing articles that assailed government activity if the government were permitted to prosecute them following release of their works to the public.

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Before 1964, the Madisonian concept of a free press found very little support among the fifty states. Not only was subsequent punishment permitted for seditious and libelous publications, but in many states, truth was not a defense to allegations of . If a story tended to discredit the reputation of a public official, the publisher could be held liable for money damages even if the story were accurate. In states where truth was allowed as a defense, the publisher often carried the burden of demonstrating its veracity. Newspapers and other media outlets soon flooded the courts with lawsuits alleging that these laws violated their First Amendment rights by "chilling" the pens of writers with the specter of civil liability for money damages.


What sort of speech would qualify as an abuse of the “right” to speak freely? Thomas G. West, Professor of Politics at Hillsdale College, that there were four commonly-recognized categories of injurious speech in the Founders’ era: personal libel, government libel, speech that injures public health or the moral foundations of society, and speech used in the course of, or that promotes, other injurious conduct.

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Both of the quasi-experiments mentioned are subject to the methodological criticism that it is not clear that the increased availability of obscene material caused the decrease in sex offences, or that there were not some other variable obscuring a positive correlation between the availability of obscene material and incidence of sex offences. (Note that the Danish study concerned adults as well as juveniles.)

The dissenting voices in the Commission were "vigorous". They argued that the data had been "statistically manipulated" and "shoddy", making a reasonable criticism of the Denmark study mentioned above in noting that Denmark has different cultural contexts from the United States and thus the study may not have external validity. In its place, they cite a study "impressive in its rigorous methodology". Davis and Brauch (1970) looked at populations of city jail inmates, Mexican-American college students, white fraternity men, and Catholic seminarians, asking them to fill out questionnaires about their behaviour, and concluded: "One finds exposure to pornography is the strongest predictor of sexual deviance." Another study cited approvingly by the dissenters, the Propper study of 476 reformatory inmates, yields a relationship between "high exposure to pornography and sexually promiscuous and deviant behaviour at very early ages."

There are substantial critiques to be made of the methodology of these cited studies. It is not clear why the sample consisted of those particular groups, and why there is a bias towards male-dominated groups. Furthermore, both studies' definitions of "sexual deviance" – including homosexual behaviour, and "having sexual intercourse 3 or more times a week" – are problematic, and there is no evidence proffered that such "deviance" has any connection with sexual crimes.

It is also clear that the dissent's arguments are coloured by their moral views. Their argument that it is impossible and totally unnecessary to attempt to prove or disprove a cause-effect relationship between pornography and criminal behaviour. However, their description of "cultural polluters" and "filth merchants" is suggestive of a value judgement, rather than objective evaluation of the social science evidence, underlying this conclusion.

President Nixon, upon receiving the majority opinion of the Commission, described its conclusions as "morally bankrupt" and that "centuries of civilisation and ten minutes of common sense tells us otherwise", stating definitively that obscenity did not receive First Amendment protections. This seems to have been a pitfall in dealing with the issue of obscenity: morality is a stronger basis in determining the answer to the constitutional question than social science evidence.