
Originally Posted by
Kellanved
Well said Nephlite, your question would be at the heart of the issue I think. Others should take the time to at least gain some understanding of the subject if you want to speak intelligently about it.
As a matter of constitutional law and original understanding, the 1st amendment has meant principally, although not exclusively, immunity from previous restraint or censorship. Any system of prior restraint of expression bears a heavy presumption against its constitutional validity. (Bantam Books v. Sullivan)
Above all else, the 1st amendment means that government has no power to restrict expression because of its message, ideas, subject matter or content. (Police depart. Of Chicago v. Mosley). In a traditional public forum (a place that has traditionally been held for the free exchange of ideas) any content based regulation (view point and subject matter) must survive strict scrutiny.
Prohibition of Obscenity is a valid exercise of State power. Obscenity is a category of speech that is unprotected by the 1st Amendment (Roth v. United States) As a general matter, obscenity laws reflect the obvious desire of a community to set minimum standards of civil behavior.
Obscenity is material that (1) the average person would find taken as a whole, appeals to the prurient interest” (2) describes or depicts, in a patently offensive way, sexual conduct specifically defined by state law” and (3) “as a whole, lacks serious literary, artistic, political, or scientific value.” (Miller v. California)
The advocacy of illegal activity is another category of unprotected speech. With respect to illegal advocacy, the question in every case is whether the words used, are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that government has a right to prevent. (Schenck v. United States)
In order for advocacy to be punished, there must be an urging to do something, now or in the future, rather than merely to believe in something. (Yates v. United States). Only where advocacy is directed and intended towards inciting or producing imminent lawless action and is likely to incite or produce such action may it be punished. (Brandenburg v. Ohio)
Without access to the content of the publication, based on what little fact there is to go on, it’s not unlikely that this author would lose a claim of 1st amendment violation.