Low Value Speech

2012-07-26 12:51:48

Traditionally, the U.S. Supreme Court categorized various forms of speech as either worthy or unworthy of protection under the First Amendment. Speech that addressed political or social issues was clearly worthy of full protection under the First Amendment, and efforts by government to regulate such speech would be subject to strict judicial scrutiny. Some forms of speech, however, were characterized as being wholly outside the protection of the First Amendment. Thus, in Chaplinsky v. New Hampshire, Valentine v. Chrestensen, and Roth v. United States, respectively, the Court ruled that government could regulate or even prohibit ‘‘fighting words,’’ commercial advertising, and obscenity without regard to the First Amendment.

In recent decades, however, the Court has ruled that some categories of speech have sufficient expressive content to warrant a more limited form of protection than political speech. In two 1976 decisions, Virginia State Board of Pharmacy and Young v. American Mini-Theaters, the Court ruled, respectively, that Commercial Speech and non-obscene pornography are ‘‘low value speech’’ that must receive some degree of protection under the First Amendment.

In a subsequent decision, the Court has applied slightly differing forms of intermediate scrutiny to judge the validity of Commercial Speech and pornography. Regulation of Commercial Speech is judged under the Central Hudson line of cases, which may be characterized as having increased the protection afforded such speech over time, as illustrated by cases such as Discovery Network and 44 Liquormart. Regulation of pornography is normally judged under the O’Brien Rules, as illustrated by cases such as City of Renton and Pap’s A.M.


References and Further Reading

  • Loewy, Arnold H., The Use, Nonuse, and Misuse of Low Value Speech, Washington & Lee Law Review 58 (2001): 1: 195–225.
  • Shaman, Jeffrey M., The Theory of Low-Value Speech, Southern Methodist Law Review 48 (1994–95): 1: 297–348.

Cases and Statutes Cited

  • Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980)
  • Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
  • City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993)
  • City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)
  • City of Renton v. Playtime Theatres, 475 U.S. 41 (1986)
  • 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)
  • Roth v. United States, 354 U.S. 476 (1957)
  • United States v. O’Brien, 391 U.S. 367 (1968)
  • Valentine v. Chrestensen, 316 U.S. 52 (1942)