I. County of Austin v. Baker
The general standard for judging the constitutionally protected status of sexual speech is the test from Miller v. California (1973). Miller requires that, for sexual speech to be unprotected, it must have the following characteristics:
a.The material is such that, an average person, applying contemporary community standards, would that, as a whole, it appeals to the prurient interest (prurience being lustful desire or lasciviousness);
b. the material depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
c. the material, taken as a whole, lacks serious literary, artistic, political or scientific value.
The first and second prongs of this test are based on a community standard, but this is subject to a possible constitutional minimum (e.g., it would probably be constitutionally impermissible for any jury or judge to decide that, under a particular community’s standard, the movie “Eyes Wide Shut”� was patently offensive, see Jenkins v. Georgia (1974) (as a matter of law, “Carnal Knowledge”� cannot be considered patently offensive)).
In addition, the Supreme Court has made it clear that child pornography using live child models is unprotected, even if it would otherwise be protected under Miller (Ferber v. New York (1982)).
These rules yield the following results: first Miller prong is met; and since they depict ultimate sex acts, if a state law defines those acts with particularity then there’s a good chance that the second prong is satisfied. Without any more information about their merit, it seems like the third prong is also met, thus rendering the books susceptible to a government ban.
a. The child pornography would be subject to the Miller standard. It would not be subject the state’s wider latitude to regulate child pornography, due to the lack of child models.
b. The sex history books would probably be protected; even though they might show ultimate sex acts, these books
would probably be held to have serious merit and thus be protected.
c. The “Man’s World”� books would
probably be protected. Incidental nudity alone is probably not enough to satisfy Miller, but even if it was a state could ban these books only as part of an overall ban on obscenity, or a ban on the “most obscene”� books. But R.A.V. v. St. Paul (1992) and American Booksellers v. Hudnut (7th Cir. 1985) suggest that a state could not ban them based on their espousal of a particular viewpoint on, or their discussion of, the topic of gender relationships.
d. The Sexart books might be unprotected. The fact that the acts depicted take place in front of reproductions of art doesn’t therefore bestow artistic merit on the books.
Since the books are designed only to titillate there is a good chance that the
II. Alabama v. Collins
The issue here is whether Collins can be prosecuted for her speech. The rule is provided by Brandenburg v. Ohio (1969), which states that, for speech to be subject to prosecution for inciting unlawful conduct, the speaker must have intended to incite such conduct as an immediate consequence of the speech (i.e., not at some indefinite later point) and that the speech have been objectively likely to succeed in doing so. The Court has generally been very speech protective in applying this test (e.g., Hess v. Indiana (1974); NAACP v. Claiborne Hardware (1982)).
It’s doubtful that the first prong is satisfied here. The speech was sharp, but its call for a “purge”� seems far more metaphorical rather than a call to immediate action. Without more facts indicating that she intended immediate action — e.g., suggestions to that effect, or the brandishing of a weapon — it’s doubtful that a court would find this prong satisfied.
The second of these prongs is more difficult to analyze given the lack of facts about the
emotional condition of the crowd. However, given how speech protective the Court has been in applying this test, it is likely that nothing short of an aroused crowd ready to act at a slight provocation by a speaker will satisfy this prong.
Conclusion: The prosecution will probably fail.
II. Baker v. The Divine Way
This issue raises the question of what standards the Constitution demands for libel convictions. Libel itself is not protected, but the First Amendment imposes restrictions on the standards of proof for libel claims in order to prevent speakers from being chilled from speaking due to a fear of large libel awards. (New York Times v. Sullivan (1964)). The question turns on (1) the identify of the plaintiff as a public or a private figure, and (2) the nature of the question as one of public or private concern (Gertz v. Robert Welch (1974)). In general, public figure plaintiffs face a higher burden of proof, and claims of libel on matters of public interest also require higher standards.
In this case, Baker would probably be a private figure. Like the attorney in Gertz, there are no facts here to indicate that Baker sought the media out; he was simply a businessman engaging in his business. Nor is he a public official like the sheriff in Sullivan. However, the matter — the introduction of pornography into the community — is probably a matter of public concern, as it concerns the moral tone and character of the community. This can be compared to the situation in Dun & Bradstreet
v. Greenmoss Builders (1985), which involved an allegedly libelous credit report sent by a credit reporting agency to a requesting company, which the Court held to be concerning a purely private matter.
This is the same combination — private figure suing on a matter of public interest — at issue in Gertz. In that case the Court stated that compensatory damages could be awarded if the plaintiff proved his case by any standard more than strict liability — in particular, negligence would be a constitutionally allowable standard for compensatory damages. However, punitive or presumed damages would have to be proven by a standard called “actual malice,”� which requires the plaintiff to prove that the defendant acted with either actual knowledge of the falseness of the statement, or reckless disregard of its falsity.
Here, Baker could surely prove negligence — the newsletter did not cross-check the information before it printed it, and it even got the name wrong of the person who had in fact been arrested. This might even suffice to show reckless disregard, since presumably any minimally careful editor would have noticed the different names and at least done some more investigation.
Conclusion: Baker can probably collect both compensatory and punitive damages.
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