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 unprotected
The Court did not directly address the question of obscenity’s constitutional status until Roth v. United States
In subsequent years, the Court found it difficult to define more precisely each element of the Roth-Alberts test. In Jacobellis v. Ohio
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
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
In Osborne v. Ohio
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
Also near the bottom of the ladder is nude dancing. In Barnes v. Glen Theatre
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
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
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
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
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
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.
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