Obscenity and pornography Summary

  • Last updated on November 11, 2022

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.

Obscenity is one of several categories of speech deemed unprotectedUnprotected speech by the First Amendment in Chaplinsky v. New Hampshire[case]Chaplinsky v. New Hampshire[Chaplinsky v. New Hampshire] (1942). In this case, the Supreme Court argued that obscenity and lewdness are analogous to libel (knowingly false speech that injures a person’s reputation) and fighting words (speech 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 AmendmentFirst 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[case]Roth v. United States[Roth v. United States] and Alberts v. California[case]Alberts v. California[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 way: Material 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[case]Jacobellis v. Ohio[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 later, in Redrup v. New York[case]Redrup v. New York[Redrup v. New York] (1967), the Court overturned an obscenity conviction in a per curiam decision (an opinion “by the court” that briefly expresses the decision but identifies no author), and 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[case]Miller v. California[Miller v. California] and Paris Adult Theatre v. Slaton[case]Paris Adult Theatre v. Slaton[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. Slaton, decided the same day as Miller, Justice 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 that 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[case]New York v. Ferber[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 children, citing the close relationship between child pornography and child abuse.

In Osborne v. Ohio[case]Osborne v. Ohio[Osborne v. Ohio] (1990), the Court held that the government may regulate private possession of child pornography. The Court reasoned that an earlier case, Stanley v. Georgia[case]Stanley v. Georgia[Stanley v. Georgia] (1969), was not applicable here. 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 home. (Stanley has never been overruled but neither has it been extended. In United States v. Reidel[case]Reidel, United States v.[Reidel, United States v.] [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 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 speech, while not meeting the definition of obscenity, are 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 ladder. Obscenity, 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[case]Young v. American Mini Theatres[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[case]City of Renton v. Playtime Theaters[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[case]Barnes v. Glen Theatre[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 five to four, 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 that 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[case]Erznoznik v. Jacksonville[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, the familiar Anglo-Saxon four-letter word being the prototypical example, 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 [case]Cohen v. California[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 M. 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[case]Sable Communications v. Federal Communications Commission[Sable Communications v. Federal Communications Commission] (1989), the Court reiterated that 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[case]Federal Communications Commission v. Pacifica Foundation[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[case]Reno v. American Civil Liberties Union[Reno v. American Civil Liberties Union] (1996), the Court overturned a 1996 federal law, the Communications Decency ActCommunications Decency Act, which attempted to protect minors by criminalizing “indecency” on the InternetInternet. 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[case]Bethel School District No. 403 v. Fraser[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.

Further Reading
  • A good place to begin a study of the legal aspects of pornography is Thomas C. Mackey’s Pornography on Trial: A Handbook with Cases, Laws, and Documents (Santa Barbara, Calif.: ABC-Clio, 2002). For a comprehensive overview of the Supreme Court’s approach to civil rights and liberties issues, consult Henry J. Abraham and Barbara A. Perry’s Freedom and the Court: Civil Rights and Liberties in the United States (8th ed. Lawrence: University Press of Kansas, 2003). Chapter 5, “The Precious Freedom of Expression,” is an excellent introduction to the Court’s First Amendment jurisprudence and includes a thorough and balanced discussion of pornography and obscenity. For a collection of scholarly essays on this subject, see Obscenity and Pornography Decisions of the United States Supreme Court (Carlsbad, Calif.: Excellent Books, 2000), edited by Maureen Harrison and Steve Gilbert. Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age (New York: Routledge, 2000), by Frederick S. Lane III, looks at changes in public and legal views of pornography brought by the spread of the Internet. Joan Mason-Grant’s Pornography Embodied: From Speech to Sexual Practice (Lanham, Md.: Rowman & Littlefield, 2004) looks at the relationship between pornography and the modern women’s movement. In general, the literature on freedom of expression is voluminous. Readers might start with two classics by a towering figure, Alexander Meiklejohn: Free Speech and Its Relation to Self-Government (Port Washington, N.Y.: Kennikat Press, 1972) and Political Freedom: The Constitutional Powers of the People (New York: Oxford University Press, 1965). More recent studies that are also valuable include Lee Bollinger’s The Tolerant Society (New York: Oxford University Press, 1986), Rodney A. Smolla’s Free Speech in an Open Society (New York: Alfred A. Knopf, 1992), Nat Hentoff’s Free Speech for Me--But Not for Thee (New York: Harper Perennial, 1993), and Kent Greenwalt’s Fighting Words (Princeton, N.J.: Princeton University Press, 1995). A variety of works deal specifically with obscenity or pornography. For a conservative approach, see Harry M. Clor’s Obscenity and Public Morality (Chicago: University of Chicago Press, 1969) or Walter Berns’s The First Amendment and the Future of American Democracy (New York: Basic Books, 1976). For a radical feminist approach to pornography, see two works by Catharine MacKinnon: Only Words (Cambridge, Mass.: Harvard University Press, 1993) and Feminism Unmodified (Cambridge, Mass.: Harvard University Press, 1987). For a response to MacKinnon and Clor, see Nadine Strossen’s Defending Pornography (New York: Scribner, 1995). A balanced overview of these and other positions can be found in a collection of essays edited by Robert M. Baird and Stuart E. Rosenbaum, Pornography: Private Right or Public Menace? (Buffalo, N.Y.: Prometheus Books, 1991).

American Civil Liberties Union

Black, Hugo L.

Brennan, William J., Jr.

Burger, Warren E.

Censorship

Cohen v. California

First Amendment absolutism

First Amendment speech tests

Harlan, John M., II

Miller v. California and Paris Adult Theatre v. Slaton

Reno v. American Civil Liberties Union

Roth v. United States and Alberts v. California

Unprotected speech

Warren, Charles

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