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first amendment question?
Let's say there is this book. It is 100% legal to own in the USA. (It doesn't contain nuclear technology info, top secret documents, or child porn or anything like that)
The US government is opposed to what the book represents as well as it's specific content. It is well aware that it cannot ban the book. The US government has tried to ban very similar books but was denied on 1st amendment grounds.
However, for some reason the book cannot be scanned. It has to be imported. The book itself does not contain any materials that are banned from import (example, it doesn't have ivory or a cover made of protected animal skins)
Would it be an infringement of the 1st amendment for the government to ban the IMPORTATION of the book, while technically allowing the ownership and possession of the book?
Note that this book exists only in THEORY not in reality
7 Answers
- Steve KLv 69 years agoFavorite Answer
Under 1st Amendment scrutiny, you're talking about a content-based restriction (i.e. the government seeks to limit access to a form of speech based on what it says, as opposed to the time, place, and manner in which it is said.) There are, of course, a number of problems with your hypothetical - first among them, the "can't be scanned" idea. You don't really explain why it can't simply be type-set and published in the U.S.A.. After all, publishers re-publish foreign works all the time (see: Potter, Harry.)
Leaving that issue aside, any regulation of speech for its content must pass a "strict scrutiny" review: the restriction must be necessary to protect a compelling government interest, narrowly tailored to achieve that government interest by the least-restrictive means. This is an exceptionally tough standard to meet (and most legislation fails to meet it.)
So, you'd have to show that banning an imported good, because of the content of its message, was necessary to promote a compelling government interest. What interest? Your hypothetical doesn't provide any guidance, so it's very difficult to answer the question.
Even so, is banning an import the least-restrictive means to accomplishing that goal? It's hard to say, when I don't know what the goal is. However, banning an import may very well be the least-restrictive measure, depending on all facts and circumstances. Your mileage may vary. If someone already owns the book, this restriction won't require them to surrender it (under these facts), so that's likely a point in its favor.
In the end, we have no way of knowing whether your hypothetical is reasonable without knowing whether there is a compelling government interest involved.
Source(s): Attorney, licensed since 2006. - 9 years ago
Smells like an O'Brien issue to me. The government can regulate the non-communicative act of import and export, but if that regulation of non-communicative activity has the incidental or peripheral effect of regulating communicative protected acts, the regulation is subjected to a form of intermediate constitutional scrutiny. Not really enough facts to tell you for sure though.
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- master mindLv 79 years ago
you said a lot without saying anything at all... what kind of book are you talking about??? i am sure this book has a name that we can look up on line.
