Gavin Howe
Obscenity laws in the United States are problematic when it comes to the First Amendment, which protects freedom of speech and expression. While the First Amendment generally protects pornography, or erotic material, it does not protect obscenity and child pornography. Obscenity is a narrow category of sexually explicit expression that deals with a shameful or morbid interest in sex and is completely without social importance. The Supreme Court has created a three-part test, known as the Miller test, to determine whether a work is obscene. However, critics argue that obscenity is subjective and depends on community standards, which may vary across different communities and change over time. This subjectivity can lead to challenges in defining and regulating obscenity, especially in the context of protecting freedom of speech and expression.
| Characteristics | Values |
|---|---|
| Obscenity is not protected by the First Amendment | States can regulate obscenity without showing that the material is "utterly without redeeming social value" |
| Determining obscenity | Determined by contemporary community standards, not a national standard |
| The Miller test | Used to determine what is obscene and thus not protected by the First Amendment |
| The Roth-Jacobellis test | Used to determine if the censor could prove that material had no redeeming social value |
| Indirect government control | Restrictive zoning of adult video stores and nude dancing |
| First Amendment case law | Allows reasonable time, place, and manner restrictions |
| First Amendment protections | Implicit in the history of the First Amendment is the rejection of obscenity as without redeeming social importance |
| Fourth Amendment search and seizure law | Absorbed First Amendment principles, so the law governing searches for and seizures of allegedly obscene materials is more stringent |
| Obscenity prosecutions | Continued against hard-core pornography, but also occasionally against other materials |
| First Amendment jurisprudence | Obscenity laws are likely to remain part of the legal system and First Amendment jurisprudence |
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What You'll Learn
The Miller test for obscenity
The Miller Test is the primary legal test used to determine whether expression constitutes obscenity and can thus be prohibited and not protected by the First Amendment. It was established by the U.S. Supreme Court in 1973 in Miller v. California.
The Miller Test, also known as the three-prong obscenity test, includes the following criteria:
- Whether the average person, applying contemporary community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion).
- Whether the average person, applying contemporary community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse).
- Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.
For a work to be considered obscene, all three conditions must be satisfied. The first two prongs of the test are held to the standards of the community, while the third prong is based on whether a reasonable person would find value in the material. This has been a point of contention, as some argue that it allows for community standards rather than a national standard, which may lead to the suppression of protected speech.
The Miller Test faced its greatest challenge with online obscenity cases, as the "community standards" part of the test became more difficult to judge due to the global nature of the internet. In Ashcroft v. ACLU (2002), several justices questioned the constitutionality of applying local community standards to speech on the internet.
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The First Amendment and child pornography
The First Amendment to the U.S. Constitution states, in part, that "Congress shall make no law...abridging the freedom of speech." This has been interpreted by the Supreme Court to mean that pornography is protected by the First Amendment unless it is obscene or involves children. Child pornography is not protected by the First Amendment and can be banned based on its content. This distinction was made in the 1982 New York v. Ferber case, which described child pornography as photos or recordings that visually depict minors engaged in sex acts or exposure of their genitals. The Court has also upheld laws prohibiting the promotion of children's sexual activity and performances through the distribution of material depicting such acts.
The Supreme Court has held that the First Amendment does not protect two types of pornography: obscenity and child pornography. To be obscene, pornography must, at a minimum, "depict or describe patently offensive 'hard-core' sexual conduct." The Court has created a three-part test, known as the Miller test, to determine whether a work is obscene. The Miller decision allows the law to evolve along with social norms and mores.
The Court has recognized the state's compelling interest in protecting children from exposure to indecent or obscene material. However, the Court has also affirmed that blanket restrictions on material that is obscene for children but not adults are constitutionally suspect as they burden adults' First Amendment rights. This was demonstrated in the 2000 United States v. Playboy Entertainment Group case, where the Court invalidated a federal content-based restriction aimed at safeguarding minors from exposure to specific content due to cable TV signal bleed. The Court reasoned that the government's interest in protecting minors was not sufficiently compelling to justify the widespread restriction on speech.
The First Amendment also intersects with child pornography in the context of children's access to pornographic material. The Court has reviewed COPA's reliance on community standards for evaluating whether content is harmful to minors and held that such reliance did not mean COPA was substantially overbroad for First Amendment purposes. The government may attempt to keep indecent material away from minors, with examples of such material including nudity and George Carlin's "seven dirty words."
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Obscenity and freedom of speech
Obscenity laws in the United States have long been a contentious issue, with critics arguing that they are inherently problematic and violate the First Amendment's protection of free speech. The First Amendment guarantees the right to freedom of speech and expression, but it does not extend to obscenity, which is considered to be "utterly without redeeming social importance". This distinction between protected speech and obscenity has been a challenging and controversial area of law, with Supreme Court justices struggling to define a clear line between the two.
The Supreme Court has held that the First Amendment does not protect two types of expression: obscenity and child pornography. These forms of expression may be banned based on their content, and federal law prohibits the mailing, transport, or receipt of obscene material across state lines or internationally. To be considered obscene, pornography must, at a minimum, "depict or describe patently offensive 'hard-core' sexual conduct". The Miller test, established by the Supreme Court in 1973, is the dominant test used to determine whether a work is obscene and thus not protected by the First Amendment. This test considers contemporary community standards, meaning that obscenity laws can evolve alongside social norms.
Despite the Miller test, critics argue that obscenity laws are too vague and problematic. They contend that no actual harm is caused by obscenity, and that the Supreme Court's reasoning in Miller and Roth was flawed. In addition, there is a concern that obscenity laws can be used to target not only hardcore pornography but also other forms of expression, such as comic books and art. This raises questions about the impact of obscenity laws on the First Amendment rights of individuals to receive ideas and information, regardless of their social value.
The application of obscenity laws in the digital age has also presented new challenges. With the expansion of the pornography industry and the proliferation of amateur and personal content on the internet, the line between protected erotic expression and obscene material has become even more blurred. While indirect government controls, such as zoning restrictions on adult businesses, have been implemented, determining what constitutes obscenity in the online realm remains a complex task.
In conclusion, obscenity laws in the United States continue to be a contentious issue, balancing the protection of free speech with the regulation of obscene content. While the Miller test provides a framework for determining obscenity, the evolving nature of expression and the challenges posed by new media underscore the ongoing difficulties in defining and enforcing obscenity laws without infringing on First Amendment rights.
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Obscenity and the right to privacy
The First Amendment protects the right to receive information and ideas, regardless of their social value. This means that the First Amendment generally protects pornography, defined as any erotic material. However, the Supreme Court has held that the First Amendment does not protect two types of pornography: obscenity and child pornography. This means that they may be banned based on their content, and federal law prohibits the mailing, transport, or receipt of obscenity in interstate or foreign commerce.
Obscenity is considered without social importance, and historically, states that ratified the First Amendment had laws criminalizing profanity or blasphemy. Determining what constitutes obscenity is challenging, and the Supreme Court has created a three-part test, known as the Miller test, to distinguish between obscene and erotic content. The Miller decision considers "contemporary community standards," allowing the law to evolve alongside social norms.
The right to privacy is a critical aspect of the discussion surrounding obscenity and the First Amendment. The Supreme Court has held that the mere private possession of obscene material is protected by the First Amendment. This means that individuals have the right to consume obscene material in the privacy of their homes without government interference. However, the Supreme Court has also rejected the claim that there is a constitutional right to provide or acquire obscene material for private use. This distinction highlights the complexity of balancing free speech and privacy rights with the regulation of obscene content.
While the First Amendment protects free speech and the right to receive ideas, it does not provide an absolute right to broadcast comparable to the right to speak, write, or publish. Federal laws and indirect government controls, such as zoning restrictions on adult businesses, are implemented to regulate obscenity and protect the public from exposure to obscene content. Additionally, the government has a responsibility to protect minors from accessing indecent or obscene material, which may lead to restrictions on the time, place, and manner of distributing such content.
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The Supreme Court's differing opinions
The Supreme Court has held that the First Amendment does not protect two types of pornography: obscenity and child pornography. This means that these two types of content can be banned, and federal law prohibits the mailing, transport, or receipt of obscenity in interstate or foreign commerce. However, the Court has also clarified that most pornography is not legally obscene. To be considered obscene, pornography must, at a minimum, "depict or describe patently offensive 'hard-core' sexual conduct."
The Supreme Court has created a three-part test, known as the Miller test, to determine whether a work is obscene and thus not protected by the First Amendment. The Miller test has been the dominant test in obscenity law and has evolved with social norms and mores. However, critics have argued that the Supreme Court's reasoning in the Miller decision was flawed and that obscenity laws are too vague and problematic.
In Memoirs v. Massachusetts (1966), the Court applied the Roth-Jacobellis test and determined that while the book Fanny Hill was clear on other aspects, the censor could not prove that it had no redeeming social value. This case highlighted the challenge of defining obscenity and the need for a clear and consistent standard.
In Young v. American Mini Theatres, Inc., the Supreme Court held that the First Amendment protects the commercial exploitation of material, even if it is considered obscene. Additionally, in American Bookseller's Association v. Hudnut, the federal courts struck down anti-pornography laws as violating the First Amendment. These cases demonstrate the Supreme Court's efforts to balance free speech protections with the regulation of obscene content.
The Supreme Court has also addressed the issue of obscenity in the context of violent content. In a case involving the sale of violent video games to minors, the Court resisted extending the definition of obscenity to include hard-core violence. This decision indicates that the Court is cautious about broadening the scope of obscenity and its legal implications.
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Frequently asked questions
The First Amendment protects the freedom of speech and expression. It states that "Congress shall make no law...abridging the freedom of speech, or of the press".
Obscenity is a category of speech that is not protected by the First Amendment. It is typically defined as "lewd, or extremely offensive words or pictures in public". To be considered obscene, pornography must, at a minimum, "'depict or describe patently offensive 'hard core' sexual conduct".
The Miller test is the dominant test used to determine obscenity. It includes the following criteria:
- Whether the average person sees the material as having/encouraging excessive sexual interest based on community standards.
- Whether the material depicts or describes sexual conduct in a clearly offensive way as defined by the applicable state law.
- Whether the work, when considered in its entirety, “lacks serious literary, artistic, political, or scientific value”.
Obscenity laws are problematic because they can restrict the freedom of expression. The line between sexually explicit material protected by the First Amendment and unprotected obscene matter is often blurry and subject to interpretation. Determining what constitutes "'contemporary community standards" can also be challenging, especially when material is disseminated online and accessible from any location.
