 the government [Carr]. Furthermore, they have started going after individuals, or organizations such as WikiLeaks, who publish material provided by government whistle-blowers. There are strong indications, tho no solid proof, that the Justice Department has obtained a sealed indictment of WikiLeaks' Julian Assange for violating the Espionage Act.
Another area in which statements have been censored, or sometimes even criminalized, despite being unrelated to any action, is obscenity. Justification for such restrictive laws is similar to that for hate laws; profanity offends people.
The 1873 federal Comstock laws [Wikipedia-Com] banned the mailing of textual, pictorial, and any other material deemed to be obscene. The maximum penalty was 5 years imprisonment at hard labor. Twenty four states passed similar legislation.
A principal target of these laws was the birth control movement. The shipment of contraceptive devices of all types, as well as written material pertaining to birth control, and sex education in general, was thereby outlawed. The mailing of certain anatomy textbooks to medical students was barred.
Over a period of a century, the scope of these laws was whittled down by Supreme Court decisions based on the First Amendment, with the ACLU playing a leading role. Altho the federal law has not actually been repealed, it has largely been nullified, as have the various state laws.
A fundamental problem with such laws is that of defining what constitutes obscenity. The nearest to a legal definition is the Miller test, developed in the 1973 Supreme Court case Miller v. California. A work is to be considered legally obscene if all 3 of the following conditions are satisfied:
Obviously this is a very fuzzy definition, even apart from the fact that it explicitly refers to "applicable state law", meaning that the definition varies from state-to-state, as well as over time. The effect of obscenity laws and regulations on the exercise of civil liberties has diminished, as a result of various court decisions, to more of a nuisance than a major threat. The situation is not much different in most other industrialized nations.
The First Amendment provision against "abridging the freedom of speech, or of the press" is the foundation of protection of free expression in the US. Its interpretation by the courts has evolved over the years, and I will discuss only what I believe are the fundamental aspects. The basic idea is that there should be no content-based legal impediments to the expression of our opinions, thoughts and feelings.
But there can be constraints arising other from other considerations. For example, one could not reasonably claim the right to operate a loudspeaker, after midnite, in a quiet residential neighborhood, regardless of the subject matter of the speech. More problematic is the issue of unsolicited political phone calls, particularly robotic calls. This is a difficult, as yet unresolved, issue.
Handing out leaflets on a public street is generally considered an important enough political activity to justify the relatively minor nuisance effect. But, along with such activities as picketing, and door-to-door soliciting, this is a complex legal matter [FindLaw]. One key consideration is that the contents of a non-commercial message not be used as legal grounds for restricting distribution.
Commercial speech is quite another matter. Unsolicited phone calls offering products for sale can be legally banned without conflict with the First Amendment. An offer to sell someone the Brooklyn Bridge is not an instance of protected free speech. Nor is a cigarette ad, or a deceptive advertisement of a pharmaceutical product.
Utterances such as, "Hand over your wallet or I'll cut your throat", are also not protected. But, a statement such as, "doctors who perform abortions ought to be killed", or even, "Abortion doctor Smith ought to be killed", fall under the heading of expressions of opinion, which constitute protected speech. However, pointing across the street to Dr. Smith and calling out to a crowd, "Kill that baby m