Spin the World


Obscenity and the Constitution

Obscenity Is Not Constitutionally Protected Speech

In ROTH v. UNITED STATES (U.S. 1957), the United States Supreme Court determined that, as a matter of history and function, obscenity is "utterly without redeeming social importance." Obscenity is "not within the area of constitutionally protected speech or press." Likewise, in CHAPLINSKY, the Court found that there are utterances that "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be deprived from them is clearly outweighed by the social interest in order and morality."

What is Obscenity?

Because obscenity is not protected under the U.S. Constitution, a key issue is distinguishing obscenity from constitutionally protected "indecent" expressions about sex and sexuality.

In MILLER, the Supreme Court established a three-part formula for distinguishing obscenity from protected expression: "(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Note that the relevant standard for prurience is a local standard. In contrast, whether a work has serious literary, artistic, political, or scientific value is to be judged by a national standard.

According to constitutional scholar Lawrence Tribe, to be obscene, an expression must simultaneously turn you on and gross you out.

Many have questioned whether the criteria set forth in MILLER is appropriate. In his dissenting opinion in MILLER, Justice Brennan argued that the definition of obscenity is inherently vague, produces a lack of fair notice to potential speakers when written into law, chills protected speech, and is a source of constant institutional stress.

What's Wrong with Obscenity?

Those who favor laws against obscenity contend it is degrading and causes a range of social problems. Some argue that the obscene depiction of women in pornography undermine status of women and entrench gender inequality. Others argue that pornography is an addictive vice. Additionally, many are concerned about the exploitation those who appear in pornographic works.

Others question whether the arguments against obscenity are based on empirical evidence or are paternalistic judgments of religious conservatives. They believe that adults should be able to watch whatever they want in the pruivacy of their own homes. This group is also likely to question why depictions of gore, violence and torture in media is acceptable while sex is taboo. This group may point to a number of modern art works that seem to undermine any distinction between smut and fine art.

Child pornography is particularly disturbing. While many believe that pornography is acceptable adult entertainment, few believe pornography is suitable for children and pornography that depicts sexual acts by children is almost universally abhorred.

The significance of the Internet as a new means of distributing pornographic works to the constitutional landscape is evidenced by a number of recent U.S. Supreme Court decisions. These cases consider legislative efforts to limit access to pornography on the Internet, particularly by minors.

Limits on Enforcing Anti-Obscenity Laws

Sincere obscenity is categorically excluded from First Amendment protection, it enjoys only the protection afforded by the due process mandate of rationality in law-making. Obscenity control, apart from protecting juvenile and unconsenting adult passerby from exposure, served the legitimate state interests in maintaining "the quality of life and the total community environment, the tone of commerce in the great city centers, and possible, the public safety itself." PARIS ADULT THEATRE I v. SLATON (U.S. 1973).

The state power to regulate obscenity recognized in ROTH and MILLER does not provide automatic license for government agents to patrol unpure thoughts. For example, the State may not invade the privacy of the homee or a person's private thoughts by punishing a person for the mere possession of obscene materials in his home. As the Court stated in STANLEY v. GEORGIA (U.S. 1969): "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch."

Is there a difference between regulatory techniques (e.g. criminal law, zoning, tax) in curbing obscenity?

Issues for Future Discussion

Despite the professed compelling state interest in regulating obscenity, hardcore pornography is a major industry in the United States. How can we reconcile legislative and judicial statements regarding the low value of obscene expression with the widespread public demand for hardcore pornography?

Should bad acts that result from obscene expression be regulated rather than censoring the pornographic material? This question raises the speech-action dichotomy.

There is growing controversy over administrative laws, 28 C.F.R. 75 (also known as the 2257 Regulations), that specify record-keeping requirements for those wishing to produce sexually explicit media, and imposes criminal penalties for failure to comply. These laws are intended to ensure that no person under the legal age is involved in such undertakings.


Ashcroft v. ACLU (U.S. 2004) Summary & Oral Arguments
The Child Online Protection Act's requirement that online publishers prevent children from accessing "material that is harmful to minors" violates the First Amendment by restricting too much protected speech and using a method that is not the least restrictive one available.

United States v. American Library Association (U.S. 2003) Summary & Oral Arguments
Congress has the authority to require libraries to install internet filtering software in order to receive federal funding.

Ashcroft v. Free Speech Coalition (U.S. 2002) Summary & Oral Arguments
The Child Pornography Prevention Act of 1996 abridges freedom of speech where it where it proscribes a significant universe of speech that is neither obscene under Miller v. California nor child pornography under New York v. Ferber.

Ashcroft v. ACLU (U.S. 2002) Oral Arguments
The Child Online Protection Act's use of "community standards" to identify "material that is harmful to minors" does not violate the First Amendment.

Reno v. ACLU (U.S. 1997) Oral Arguments
The 1996 Communications Decency Act violates the First and Fifth Amendments by being overly broad and vague in their definitions of the types of internet communications which they criminalized. The Court held that the Act violated the First Amendment because its regulations amounted to a content-based blanket restriction of free speech.

New York v. Ferber (U.S. 1982) Oral Arguments
A New York child pornography law that prohibs persons from distributing material which depicts sexual performances by children under the age of sixteen does not violate the First and Fourteenth Amendments because the state's interest in preventing sexual exploitation of minors was a compelling "government objective of surpassing importance."

Young v. American Mini-Theater (U.S. 1976) (FULL TEXT)
Upholds Detroit's "Anti-Skid Row" ordinance requiring dispersal of places of adult entertainment. Court held that the law was a reasonable means of furthering the city's important interest in regulating land use for commercial purposes in order to preserve the quality of urban life. When the state undertakes to regulate the location of adult-only establishments pursuant to its zoning powers, the Court has treated such laws as time, place and manner controls which must serve a substantial government interest and leave open reasonable alternative avenues of communication.

Miller v. California (U.S. 1973) (SUMMARY) (FULL TEXT)
Miller sent out advertising brochures for adult books to random recipients. The central constitutional issue in this case is to identity what qualifies as "obscenity" undeserving of First Amendment protection.

Paris Adult Theater I v. Slayton (U.S. 1973) (SUMMARY) (FULL TEXT)
The First Amendment provides no protection to consenting adults seeking to view obscene films in an adult movie theater. Speech which isn't protected doesn't become protected merely because you show it only to consenting adults.

Roth v. United States (U.S. 1957) Summary & Oral Arguments
The Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process.