Most types of speech, either verbal or symbolic (e.g. flag burning) are protected under the First Amendment. Obscenity in the past has been scrutinized by the courts, but in recent times only hard core pornography has been at issue. When discussing the First Amendment's protection of obscenity, courts look at (1) whether the average person, applying contemporary community standards would find that work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 US 15 (1973). In addition, the courts will look at whether the work at issue is being viewed in a public or private context. However, because of the government's interest in preventing child abuse, child pornography is also not protected under the First Amendment. See New York v. Ferber, 458 US 747 (1982); Osbourne v. Ohio, 495 US 103 (1990).
Among the types of speech protected by the First Amendment is libel. New York Times v. Sullivan Co., 376 US 254 (1964). A public official or public figure can only claim libel if "the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false." However, the standard is different for a private individual. In Gertz v. Robert Welch, Inc. 418 US 323 (1974), the Supreme Court said that individual states may define for themselves the appropriate standard of liability in such a case. However, it also held that even private figures must meet the malice standard in order to recover punitive or presumed damages if the speech at issue relates to a matter of public concern. See also Philadelphia Newspapers, Inc. v. Hepps, 475 US 767 (1986). The Court has refused to extend the ruling to cases involving private concern speech, holding that private persons suing on matters of private concern need not show actual malice in order to recover presumed or punitive damages.Dun & Bradstreet v. Greenmoss Builders, 472 US 749 (1985). Another area of speech to which the First Amendment extends limited protectin is commercial speech or advertising. The First Amendment's protection is more limited than in other areas because of the supposed hardiness of commercial speech. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 US 748 (1976); Central Hudson Gas & Electric v. Public Services Comm'n, 447 US 557 (1980).
In recent times, however, the Court has tended in the direction of punishing symbolic or expressive action, although acknowledging freedom of belief. In Dawson v. Delaware, 503 US 159 (1992), the State introduced evidence at a capital sentencing hearing that the defendant was a member of a white supremacist prison gang, but because the evidence proved nothing more than abstract beliefs, the Supreme Court held that its admission violated the defendant's First Amendment rights. The Dawson Court stated that "the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment. However, in Barclay v. Florida, 463 US 939 (1983), the Court found that the evidence showed that a defendant's member ship in the Black Liberation Army and desire to provoke a "race war" were related to the murder of a white man. Vecause the racial hatred of the defendant was relevant to several aggravating factors, the Court held that it could be taken into account in sentencing the defendant to death. Wisconsin v. Mitchell, 508 US 476 (1993) synthesized these two opinions by clearly distinguishing between actions and beliefs. The Mitchell case held that a Wisconsin statute calling for greater maximum penalties where the defendant chooses his or her victim on account of race does not violate the defendant's First Amendment right to freedom of speech since it is not punishing the beliefs but the actions.