First Amendment: Protecting Obscenity Or Free Speech?

The First Amendment protects the right to free speech and a free press, but the U.S. Supreme Court has determined that this protection does not extend to several categories of unprotected speech, including obscenity. Obscenity refers to a narrow category of pornography that violates contemporary community standards and has no serious literary, artistic, political, or scientific value. While the First Amendment does not protect obscene material, the line between obscenity and constitutionally protected speech or expression is often blurry and has been the subject of much debate and litigation. The Supreme Court has created tests, such as the Miller test and the Roth test, to determine whether material is obscene and thus not protected by the First Amendment. However, the Court has also acknowledged the difficulty of defining obscenity and agreeing on how much the state can regulate it.

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The Miller test

The First Amendment protects the right to free speech and a free press, acting as a prohibition on Congress passing laws that restrict these freedoms. However, the U.S. Supreme Court has determined that this protection does not extend to obscenity.

• Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
• Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law.
• Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

For a work to be considered obscene, it must satisfy all three conditions. The use of "contemporary community standards" in the Miller Test means that the law can evolve alongside social norms and mores. However, the test has faced challenges, especially with the advent of the Internet, as it is difficult to determine which jurisdiction's community standards should apply to online content.

Child pornography

The First Amendment to the U.S. Constitution states, "Congress shall make no law...abridging the freedom of speech, or of the press." The First Amendment protects our right to free speech, but the U.S. Supreme Court has determined that this protection does not extend to several categories of unprotected speech, including obscenity. While the First Amendment does not protect obscene materials, the Supreme Court's decisions reveal limited clarity with respect to obscenity, and the Justices have had difficulty defining obscenity and agreeing on how much the state can regulate it.

The Court has also distinguished between child pornography and adult pornography in terms of the state's interest in regulating it. In the landmark 1997 Reno v. American Civil Liberties Union (ACLU) matter, the Court struck down provisions of the federal Communications Decency Act, reasoning that the government's interest in protecting minors from exposure to specific content was not sufficiently compelling to justify widespread restrictions on speech. The Court has also reviewed and upheld federal content-based restrictions, such as in United States v. Playboy Entertainment Group, where the legislation aimed to safeguard minors from exposure to specific content due to cable TV signal bleed.

In terms of production and distribution, the Court has upheld prohibitions on the production and distribution of child pornography due to its direct link to the sexual abuse of minors. In New York v. Ferber (1982), the Court articulated this link, and Congress passed the Protection of Children Against Sexual Exploitation Act of 1977, which made it a crime to use a minor under 16 years of age in obscene depictions of sexually explicit conduct. The Child Sexual Abuse and Pornography Act of 1986 further proscribed advertising for child pornography and created civil liability for personal injuries to minors resulting from its production.

With the advent of the Internet, Congress strengthened existing statutes to address the online distribution of child pornography. The Child Protection and Obscenity Enforcement Act of 1988 criminalized transporting, distributing, or receiving child pornography via computer. The Supreme Court has also reviewed provisions of the federal Child Pornography Prevention Act of 1996 (CPPA), which aimed to address the issue of virtual child pornography. However, the Court struck down this law, citing the fundamental First Amendment principle that "the government may not suppress lawful speech as a means to suppress unlawful speech."

Freedom of speech

The First Amendment to the United States Constitution protects the right to free speech, stating that "Congress shall make no law [...] abridging the freedom of speech, or of the press". However, the Supreme Court has determined that this protection does not extend to several categories of unprotected speech, including obscenity.

The Supreme Court has ruled that obscenity is not protected by the First Amendment. However, the courts must determine in each case whether the material in question is obscene. The U.S. Supreme Court created the Miller test for courts to use to determine whether material is obscene. The Miller test considers whether the material appeals to the prurient interest in sex, is patently offensive to community standards, and has any literary, artistic, scientific, or political value. The determination of whether pornography is considered obscene depends on the Miller test.

The Supreme Court has indicated that obscenity is not limited to pictures, and books containing only descriptive language may also be suppressed if they are deemed obscene. The Miller test uses community standards, which means that the same item can be legally obscene in one jurisdiction but protected by the First Amendment in another. This question of jurisdiction and community standards has created significant controversy in the age of the internet.

The Supreme Court has also clarified that the "serious value" prong of the Miller test should not be judged by contemporary community standards. Obscenity prosecutions impose contemporary community standards, even if a distributor may transport materials to various communities. This has led to calls for the creation of a national standard to address the complexities of jurisdiction and community standards in the internet era.

While the First Amendment protects freedom of speech, it is important to note that certain types of pornography, including obscenity and child pornography, are not protected by the First Amendment. The Supreme Court has held that obscenity refers to material that is utterly without redeeming social importance. Additionally, federal statutes ban child pornography produced with real children, and this type of content is unprotected by the First Amendment even when it is not obscene.

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Community standards

The First Amendment protects the right to receive information and ideas, regardless of their social value. However, obscenity is not protected by the First Amendment, and violations of federal obscenity laws are criminal offences. The Supreme Court has ruled that obscenity is utterly without redeeming social importance and is not entitled to First Amendment protection. The Court has also clarified that sex and obscenity are not synonymous. Obscene material deals with sex in a manner that appeals to prurient interests.

The determination of whether material is obscene is based on community standards. In Jenkins v. Georgia, the Court held that juries should determine whether material was patently offensive based on their understanding of community standards. However, it was unclear how appeals courts could appropriately review these jury determinations. The three-pronged Miller test is commonly used to determine if material is obscene and may include visual depictions, spoken words, or written text.

Federal law prohibits the distribution of obscene matter to minors under the age of 16, including over the Internet. It is also illegal to use misleading website domain names with the intent to deceive minors into viewing harmful or obscene material. Visual representations that appear to depict minors engaged in sexual activity and are obscene are also prohibited. The standard for what is harmful to minors may differ from the standard for adults, and offenders convicted of obscenity crimes involving minors face harsher penalties.

While the First Amendment protects freedom of speech, it does not protect certain categories of speech, including obscenity. The Supreme Court has recognised that the First Amendment permits restrictions on content falling within limited categories, including obscenity, child pornography, defamation, fraud, incitement, fighting words, true threats, and speech integral to criminal conduct. The Court has been reluctant to add new categories of excepted speech and has interpreted the existing categories narrowly.

Supreme Court rulings

The First Amendment protects the right to free speech and a free press, acting as a prohibition on Congress passing laws that restrict these freedoms. However, the U.S. Supreme Court has ruled that this protection does not extend to several categories of unprotected speech, including obscenity.

The Supreme Court has ruled that obscenity is not protected by the First Amendment, but the courts must determine in each case whether the material in question is obscene. The Miller test, established by the Supreme Court in Miller v. California (1973), is the leading test for determining whether material is obscene and thus not protected by the First Amendment. The test considers whether the material appeals to the prurient interest in sex, is patently offensive to community standards, and has any literary, artistic, or scientific value.

The Court has indicated that obscenity is not limited to pictures, as books containing only descriptive language may also be suppressed. In American Booksellers Association, Inc. v. Hudnut, the 7th U.S. Circuit Court of Appeals applied the Miller test and determined that an Indianapolis ordinance banning certain depictions of women violated the First Amendment.

The Supreme Court has also addressed the issue of possession of obscene materials. In Stanley v. Georgia, the Court held that the mere private possession of obscene materials in the home cannot be a criminal offense, as it violates the right to receive information and ideas, regardless of their social value.

In Jacobellis v. Ohio (1964), the Supreme Court held that a work could be obscene only if it was "utterly without redeeming social importance." However, Justice Potter Stewart, who concurred in the case, acknowledged the difficulty in defining obscenity, stating, "I know it when I see it."

In Brown v. Entertainment Merchants Association (2011), the Supreme Court invalidated a state law regulating the sale or rental of violent video games to minors, stating that "violence is not part of the obscenity that the Constitution permits to be regulated."

The Supreme Court has also considered the issue of sexually explicit art and its removal from designated public forums, upholding the law in National Endowment for the Arts v. Finley (1998) as the restrictions were conditions on funding rather than a direct regulation of speech.

The question of jurisdiction and community standards in the age of the internet has created significant controversy, with some legal experts calling for the creation of a national standard.

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