Obscenity and pornography

Description: An obscenity is an utterance or act that is morally or ethically offensive. Pornography is the depiction of erotic behavior intended to arouse sexual excitement.

Relevant amendment: First

Significance: The Supreme Court held obscenity to be a category of speech not protected by the First Amendment. The justices had difficulty agreeing on a definition of obscenity, not forming a standard until a 1973 ruling.

Obscenity is one of several categories of speech deemed unprotected by the First Amendment in Chaplinsky v. New Hampshire (1942). In this case, the Supreme Court argued that obscenity and lewdness are analogous to libelknowingly false speech that injures a person’s reputationand fighting wordsspeech that may incite the individual to whom the speech is addressed to attack the speaker. The Court reasoned that such speech is not essential to the rational exchange of ideas cherished by the First Amendment and is of little value to society. Any harm arising from suppression is outweighed by society’s interest in maintaining order and morality.

Defining Obscenity

The Court did not directly address the question of obscenity’s constitutional status until Roth v. United States and Alberts v. California (1957). Writing for a 6-3 majority, Justice William Joseph Brennan, Jr. held that obscenity is unprotected by the First Amendment because it is “utterly without redeeming social importance.” Brennan stressed that “sex and obscenity are not synonymous” and distinguished between them by explaining that obscene material deals with sex in a manner appealing to “the prurient interest.” Brennan defined prurient as “having a tendency to excite lustful thoughts” or appealing to a “shameful and morbid interest in sex.” What became known as the Roth-Alberts test for obscenity was formulated by Brennan in this wayaterial was obscene if “to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.”

In subsequent years, the Court found it difficult to define more precisely each element of the Roth-Alberts test. In Jacobellis v. Ohio (1964), Justice Potter Stewart questioned whether he could “intelligibly” define obscene material, though he averred that “I know it when I see it” and went on to find that the material involved was not obscene. Three years laterin Redrup v. New York (1967)the Court overturned an obscenity conviction in a per curiam decisionan opinion “by the court” that briefly expresses the decision but identifies no author. For the next six years in more than thirty obscenity cases, the Court decided each per curiam, the individual justices applying their own understanding of the definition of obscenity. Justice Hugo L. Black, true to his absolutist approach to First Amendment interpretation, refused to view any of the movies or publications involved in these cases.

These Warren Court decisions were criticized for failing to provide clear guidelines to law enforcement officials charged with applying federal, state, and local antiobscenity statutes. There was also concern that nonobscene sexually explicit speech might be stifled if speakers feared that speech they thought protected might later be found punishable. However, others found the Warren Court’s standards too permissive, and these decisions, among others, were issues in the 1968 presidential election.

In Miller v. California and Paris Adult Theatre v. Slaton (1973), the Burger Court reaffirmed Roth’s finding that obscenity is not protected by the First Amendment and expounded the current test for obscenity. Writing for a 5-4 majority, Chief Justice Warren E. Burger held that three requirements must be met to find material obscene. First, the average person, applying contemporary community standards, must find the material appealing to his or her prurient interest. Second, the material must depict sexual conduct in a patently offensive way“patently offensive representations . . . of ultimate sexual acts” and “patently offensive representations . . . of masturbation, excretory functions, and lewd exhibition of the genitals”. Third, material is obscene if, taken as a whole—not simply focusing on isolated passages or pictures in, for example, a book or magazine—it “lacks serious literary, artistic, political, or scientific value.” In short, obscenity is “hard core” pornography.

In Paris Adult Theatre v. Slatondecided the same day as MillerJustice Brennan, who authored the majority opinion in Roth, questioned whether this new approach would bring stability to the law of obscenity and suggested that fundamental First Amendment values were jeopardized. He argued the government’s interest in regulating sexually explicit materials was confined to distribution to minors or unwilling adults and that regulation of the distribution of such materials to consenting adults was inconsistent with the First Amendment. Obscenity opponents praised the Court for achieving a majority opinion defining obscenity and rejecting an earlier approach—used by the Court in the 1966 Fanny Hill case (A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts)—that a work is obscene if it is “utterly without redeeming social value.” This minimal social value test placed a heavy burden on prosecutors, in essence requiring them to prove a negative. Under Miller, prosecutors merely have to show that a work lacks “serious” literary, artistic, political, or scientific value.

In New York v. Ferber (1982), the Court created an important exception to the principle that nonobscene sexually explicit material is entitled to First Amendment protection. The Ferber case involved a New York State law prohibiting the knowing production, exhibition, or distribution of any material depicting a “sexual performance” by a child under sixteen. Ferber was convicted for selling two films showing young boys masturbating. The Court upheld the conviction, even though this material did not meet the Miller test for obscenity. The Court reasoned that the state had a “compelling interest” in protecting the physiological, emotional, and mental health of childrenciting the close relationship between child pornography and child abuse.

In Osborne v. Ohio (1990), the Court held that the government may regulate private possession of child pornography. The Court reasoned that an earlier caseStanley v. Georgia (1969)was not applicable to their ruling. In Stanley, the Court overturned a conviction for possession of obscenity. Justice Thurgood Marshall’s opinion for the Court stressed the freedom of individuals to read or watch what they choose in the privacy of their own homeStanley has never been overruled but neither has it been extended. In United States v. Reidel [1971], for example, the justices rejected the argument that a right to possess obscene materials entails a right to receive them despite a governmental ban on the shipment of such materials. In Osborne, over a dissent by Justice Brennan in which he argued that the controlling precedent was Stanley, the Court reasoned that the privacy interest was outweighed by the state’s need to protect children by attacking the “market for the exploitative use of children.”

Sexually Oriented Nonobscene Speech

Some types of sexual speechwhile not meeting the definition of obscenityare treated by the Court as low-value speech. The government has more room to regulate such speech than it would if it were targeting a political speech or a newspaper editorial. The Court has used the metaphor of a ladderbscenity, libel, or fighting words are at the bottom of the ladder, while a speech at a political rally or a newspaper editorial are at the top. Sexually oriented nonobscene speech is somewhere in between and, in the eyes of some justices, closer to the bottom.

The Court has never given a detailed definition of this category but it is clear that sexually explicit nonobscene material is included. One example involves movie theaters specializing in “adult” entertainment—material involving “specified sexual activities” or “specified anatomical areas.” In Young v. American Mini Theatres (1976), the Court said cities could limit how many adult theaters could be on any block and exclude them from residential neighborhoods. The Court stressed that attempts to place complete bans on such establishments would raise First Amendment problems. Subsequently in City of Renton v. Playtime Theaters (1986), the Court approved a zoning ordinance that banned adult theaters located within one thousand feet of any residential zone, church, park, or school. The practical effect of Renton’s law was to exclude such establishments from 95 percent of the land in the city. The remaining 5 percent was unsuitable for such establishments, but the Court—relying on Young—upheld the ordinance.

Also near the bottom of the ladder is nude dancing. In Barnes v. Glen Theatre (1991), the Court held that the government may completely ban nude dancing. At issue in Barnes was an Indiana statute prohibiting public nudity. The Court split 5-4, and there was no majority opinion. The plurality opinion by Chief Justice William H. Rehnquist described nude dancing as “within the outer perimeters of the First Amendment, though . . . only marginally so.” Rehnquist argued the ban on nude dancing was needed to protect “societal order and morality.” In the chief justice’s view, Indiana was not proscribing erotic dancing but rather targeting public nudity. Justice Byron R. White’s dissenting opinion argued that nudity is an expressive component of the dance rather than “merely incidental 'conduct.'”

Whatever the exact definition of sexually oriented nonobscene speech, the Court has indicated that nudity per se is not enough to place the communication near the bottom of the ladder. In Erznoznik v. Jacksonville (1975), the Court overturned a Jacksonville, Florida, ordinance prohibiting a drive-in movie theater from showing films including nude scenes if the screen was visible from a public street or any other public place. The Court stressed that nudity alone is not obscene and not enough to curtail First Amendment protections.

Profane and Indecent Language

Profane and indecent language does not meet the Miller definition of obscenity, and the Court has found such language protected by the First Amendment. The notion that the government may not punish speech simply because some find it offensive, a bedrock principle of First Amendment interpretation, found classic expression in Cohen v. California (1971). In Cohen, the Court overturned the conviction of an anti-Vietnam War protester charged with disturbing the peace by wearing in the corridor of a courthouse a jacket with the words “Fuck the Draft” emblazoned on its back. Justice John Marshall Harlan II’s majority opinion rejected the notion that the state can prohibit offensive language. Harlan was concerned that—under the guise of prohibiting particular words—the government might seek to ban the expression of unpopular views. Additionally, Harlan endorsed Cohen’s argument that words are often used as much for their emotive as their cognitive impact. Cohen could not have conveyed the intensity of his feeling if the jacket said “I Don’t Like the Draft.” In Sable Communications v. Federal Communications Commission (1989), the Court reiterated that the government may prohibit obscene but not indecent speech.

However, the Court has also recognized situations in which the government can ban profane or indecent language. One such situation is broadcasting. In Federal Communications Commission v. Pacifica Foundation (1978), the Court allowed the Federal Communications Commission (FCC) to punish indecent language broadcast over an FM radio station. The station aired a portion of a monologue on “seven dirty words” by comedian George Carlin. Chief Justice Burger’s opinion emphasized that broadcast media are unique in their pervasiveness and in their ability to intrude into the home. Burger also expressed concern about the accessibility of such broadcasts to children.

Applying Pacifica to another pervasive and intrusive medium—cable television—in 1996, the Court considered several provisions of a federal law regulating the broadcast of “patently offensive” sexually oriented material on cable. The Court held in Denver Area Educational Consortium v. Federal Communications Commission, that cable operators could refuse to carry sexually explicit broadcasting. The Court again stressed the need to protect children. At the same time, the Court found unconstitutional a requirement that sexually oriented programs be confined to a single channel that could not be viewed unless the cable subscriber requested access in writing. Although concerned about the availability of such material to children, the Court believed that the law could have chosen less restrictive alternatives, such as facilitating parental blockage of such channels.

In Reno v. American Civil Liberties Union (1996), the Court overturned a 1996 federal law, the Communications Decency Act, which attempted to protect minors by criminalizing “indecency” on the Internet. Justice John Paul Stevens’s 7-2 majority opinion found that the act placed too heavy a burden on protected speech and threatened “to torch a large segment of the Internet community.” The Court said the Internet is analogous to the print rather than broadcast medium and therefore entitled to full First Amendment protections. The Court voiced concern that the law would threaten legitimate discussion of sexual topics posted online by the plaintiffs—for example, groups such as Stop Prisoner Rape or Critical Path AIDS Project.

Another exception to the Court’s protection of profane and indecent language arises in the context of schools. The Court upheld the right of public school officials to punish a student for indecent speech. In Bethel School District No. 403 v. Fraser (1986), the Court found that Fraser’s school assembly speech, containing no profanity but numerous sexual innuendoes, was “wholly inconsistent with the ‘fundamental value’ of public school education.” Bethel exemplifies the Court’s tendency to defer to school authorities and to emphasize an orderly educational process over student free speech rights.

In July 2024, the US Supreme Court announced it would review a First Amendment case involving a Texas law that restricted child internet access to pornography. At issue was a provision in the Texas law which required websites that hosted pornographic content to first determine the ages of prospective users. This law had been challenged by content creators in the adult film industry. The plaintiffs sought legal relief as they maintained such a requirement infringed on expressions protected by the US Constitution, and hence, their First Amendment rights. Websites in violation of enacting these protective measures are subjected to daily fines of up to $10,000. The plaintiffs were supported by an initial ruling by the Western District of Texas which ruled in 2023 that the law contradicted the First Amendment. This ruling was itself overruled by the US Court of Appeals for the Fifth District which stated the higher legal priortity of protecting children.

In a different case reflective of the societal impacts by the advent of artificial intelligence (AI)—in August 2023—federal prosecutors arrested Seth Herrera—a US Army soldier stationed in Alaska. Herra was charged with possession of thousands of images depicting sexual abuse of children. Notable was that Herrera had employed artificial intelligence to generate much of the content. The images were formed, nonetheless, by utilizing photos of actual children.

These types of arrest and legal cases involving AI-generated images have now begun to appear in federal courts in increasing numbers.

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