That argument is well stated in Edward Livingston's explanation of the defamation provisions of his proposed penal code for Louisiana: In affirming appellant's conviction, before New York Times was handed down, the Supreme Court of Louisiana relied on statements in Roth v. United States, 354 U.S. 476, 486-487, and Beauharnais v. Illinois, 343 U.S. 250, 266, to the effect that libelous utterances are not within the protection of the First and Fourteenth Amendments, and hence can be punished without a showing of clear and present danger. 244 La., at 833-834, 154 So.2d, at 416-417.
The asserted falseness of Nazi dogma, and, indeed, its general repudiation, simply do not justify its suppression. The Village's second argument, and the one on which principal reliance is placed, centers on Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952). There a conviction was upheld under a statute prohibiting, in language substantially (and perhaps not unintentionally) similar to that used in the ordinance here, the dissemination of materials promoting racial or religious hatred.
Since obscenity is not protected, constitutional guaranties were not violated in these cases merely because, under the trial judges' instructions to the juries, convictions could be had without proof either that the obscene material would perceptibly create a clear and present danger of antisocial conduct, or probably would induce its recipients to such conduct. Beauharnais v. Illinois, 343 U.S. 250. Pp. 485-490. (a) Sex and obscenity are not synonymous.
For example, "[l]ibelous utterances [are] not ... within the area of constitutionally protected speech," and a state may therefore enact laws punishing them. Beauharnais v. Illinois , 343 U.S. 250, 266, 72 S.Ct. 725, 96 L.Ed. 919 (1952). Prohibitions relating to content, however, are few, because of the First Amendment’s "bedrock principle" that an idea cannot be prohibited "simply because society finds the idea itself offensive or disagreeable."
See, e. g., T. Emerson, The System of Freedom of Expression 543 (1970). Although the case has been subjected to great criticism, a state's power to punish group libel was narrowly upheld by the Supreme Court in Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952). For a full discussion of the history of criminal libel laws see, e. g., Kelly, Criminal Libel and Free Speech, 6 Kan.L.Rev. 295 (1958); Note, Constitutionality of the Law of Criminal Libel, 52 Col.L.Rev. 521 (1952).
The historical justification for criminal libel has been its tendency to provoke a breach of the peace. ( Garrison v. Louisiana (1964), 379 U.S. 64, 67-68; 13 L.Ed.2d 125, 129, 85 S.Ct. 209, 212; Beauharnais v. Illinois (1952), 343 U.S. 250, 254, 96 L.Ed. 919, 926, 72 S.Ct. 725, 729; People v. Spielman (1925), 318 Ill. 482, 489.) The legislation in question incorporates this rationale as it provides:
Among them are obscenity, profanity, libelous or fighting words tending to cause a breach of the peace. Beauharnais v. People of State of Illinois, 343 U.S. 250, 256, 72 S.Ct. 725, 96 L.Ed. 919; Dennis v. United States, 341 U.S. 494, 544, 71 S.Ct. 857, 95 L.Ed. 1137 (Mr. Justice Frankfurter concurring); Kingsley Books v. Brown, 354 U.S. 436, 440, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Roth v. United States, 354 U.S. 476, 500, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (Mr.
We have recognized that "the freedom of speech" referred to by the First Amendment does not include a freedom to disregard these traditional limitations. See, e.g., Roth v. United States, 354 U.S. 476 (1957) (obscenity); Beauharnais v. Illinois, 343 U.S. 250 (1952) (defamation); Chaplinsky v. New Hampshire, supra ("`fighting' words"); see generally Simon Schuster, supra, at 124 (KENNEDY, J., concurring in judgment). Our decisions since the 1960's have narrowed the scope of the traditional categorical exceptions for defamation, see New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); see generally Milkovich v. Lorain Journal Co., 497 U.S. 1, 13-17 (1990), and for obscenity, see Miller v. California, 413 U.S. 15 (1973), but a limited categorical approach has remained an important part of our First Amendment jurisprudence.
"In a more abstract and more significant sense, however, both they and we have been aware that the adoption of the principle of self-government by 'The People' of this nation set loose upon us and upon the world at large an idea which is still transforming men's conceptions of what they are and how they may best be governed."See Beauharnais v. Illinois, 343 U.S. 250, 272 (1952) (Black, J., dissenting). Brant, who interprets the Framers' intention more liberally than Chafee, nevertheless saw the free speech protection as bearing upon criticism of government and other political speech.
As Mr. Chief Justice Warren stated, there is a "right of the Nation and of the States to maintain a decent society . . .," Jacobellis v. Ohio, 378 U.S. 184, 199 (1964) (dissenting opinion). See Memoirs v. Massachusetts, 383 U.S. 413, 457 (1966) (Harlan, J., dissenting); Beauharnais v. Illinois, 343 U.S. 250, 256-257 (1952); Kovacs v. Cooper, 336 U.S. 77, 86-88 (1949). "In this and other cases in this area of the law, which are coming to us in ever-increasing numbers, we are faced with the resolution of rights basic both to individuals and to society as a whole.