Paper Example on First Amendment

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Harvey Mudd College
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The First Amendment to the US Constitution protects the rights of a person to freedom of expression, freedom of religion from interference by the government (Uvin, 2004). Freedom of expression consists of liberty of the press, assembly, speech, the rights of association and belief, and to petition for the redress of grievances from the government. The Supreme Court, however, defines the limits to which these rights apply and how they afford protection under the US Constitution. For the past years, the First Amendment is interpreted to apply to the federal government while is expressly applicable to the Congress (Uvin, 2004). The Fourteenth Amendment is taken as protecting the rights of First Amendment. The fundamental component of freedom of expression is the freedom of speech.

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Freedom of speech allows citizens to express themselves without constraint or interference by the government (Uvin, 2004). Therefore, the Supreme Court requires that the government provides a clear justification for the interference with the said right when it tries to regulate the rights based on the content of the speech. Commonly, for content-neutral legislation, a less stringent test is applied (Uvin, 2004). The Supreme Court also takes into account that the government may need to prohibit speeches that would cause violence or a breach of peace in the country. Under freedom of speech, some categories have been recognized including fighting words, advocacy for illegal action, obscenity and commercial speech (Uvin, 2004). The right to freedom of speech constitutes other mediums that communicate with the level of protection depending on the forum in which it takes place. This paper discusses the rights to freedom of speech under two cases including Roth v. the United States and A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts

Roth v. the United States

Roth did business in New York in the sale and publication of books, magazines, and photographs (Roth v. the United States, 1957). Roth had used circulars and advertising matter to solicit sales. He was convicted upon four accounts of a twenty-six account indictment. The District Court jury of Southern District of New York charged him of mailing obscene circulars, an obscene book and advertising while violating the federal obscenity statute. His conviction was affirmed by the Court of Appeal of the Second Circuit. In Roths case, the constitutionality of 18 U.S.C Section 1461 was tested. This section of the constitution makes the mailing of material regarded as lewd, obscene, lascivious or filthy, or any other publication of an indecent character punishable. Roths case for mailing of obscene books and circulars including advertisement are considered under this clause (Roth v. the United States, 1957).

According to the presiding judge, Brennan J, he affirmed that the constitutionality of a criminal obscenity I the question in this case. The primary issue was whether the federal obscenity statute violated the provision of the first amendment. This case is similar to Alberts v. California in which the judge makes reference. In this case, the primary constitutional question was whether the obscenity described by California Penal Code violated the freedoms of press and speech as incorporated in the Due Process Clause of the Fourteenth Amendment. The question majorly addressed in this case was whether the federal obscenity statute that prohibits the transfer or sale of obscene materials via mail impinges upon the First Amendment on freedom of expression. Brennan held that obscenity was not within the area of constitutionality protected speech or press (Roth v. the United States, 1957). I agree with this ruling since the First Amendment doesnt protect all speeches or form of expression, such as materials that are considered to have no social importance in the society. My argument comes from the court ruling statement defining whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole part appeals to prurient interest (Roth v. the United States, 1957).

A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts

Appellee, the Attorney General of Massachusetts, brought a case for the adjudication of obscenity in John Cleland's Memoirs of a Woman of Pleasure. The publisher of the book (appellant) intervened. Following the hearing of the case, it involved the inclusion of expert testimony plus evidence assessing the characters in the book and not in the manner of the distribution of the book. The trial court had declared the book obscene and therefore not entitled to First and Fourteenth Amendments (Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass, 1966). The jury consisting of Justice Brennan and Mr. Justice Fotras, they concluded that under the test of Roth V. United States, they cleared that the elements described must be met to determine a book obscenely. The included the dominant theme in the book, whether the material is patently offensive in the sense of whether it is prurient (Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass, 1966). The third element determined whether the material (in this case a book) had no social importance.

Since the book could not be found as utterly obscene or without any social value, the Supreme Court used the federal constitution for interpretation. The First Amendment forbids the censorship of expression based on ideas not related to the criminal action. Using the current Roth Test as described in the first case, the material couldnt be found as obscene or not having any social importance. Therefore, Justice Douglas concluded that there is no interest in the society that overrides the guarantee to free press and speech so as to establish the regime of censorship (Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass, 1966). In making the decision, in this case, the Court found out that the book was not obscene while applying the test established during the Roth v. United States case, Roth Test. I agree with the courts decision since books cannot be regarded as obscene even if they were of no social purpose unless if satisfies the three elements described in Roth Test.


Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966).

Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957).

Uvin, P. (2004). Human rights and development (Vol. 37).Streling: Kumarian Press.

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