Malcolm Rivera
The First Amendment does not protect obscene material, although the Supreme Court has struggled to define obscenity and agree on how much the state can regulate it. The Justices have distinguished between traditionally obscene material and pornography, with the latter's classification depending on the Miller test. In the case of *Stanley v. Georgia*, the Supreme Court held that mere private possession of obscene material is protected, but this does not imply the right to provide or acquire it.
| Characteristics | Values |
|---|---|
| Is obscene material protected by the First Amendment? | No |
| Is sexually explicit material protected by the First Amendment? | Yes |
| Is pornography protected by the First Amendment? | It depends on the Miller test |
| Is child pornography protected by the First Amendment? | No |
| Is the private possession of obscene material protected by the First Amendment? | Yes |
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What You'll Learn
- The First Amendment doesn't protect obscene material
- The Supreme Court defines obscenity using community standards
- The Supreme Court has allowed one exception to the rule that obscenity is not protected under the First Amendment
- The Court distinguishes traditionally obscene material from pornography
- The determination of whether pornography is considered obscene depends on the Miller test
The First Amendment doesn't protect obscene material
The First Amendment does not protect obscene material. The Supreme Court has defined obscenity using community standards and other tests, such as the Miller test, which distinguishes traditionally obscene material from pornography. The determination of whether pornography is considered obscene depends on the Miller test. The Supreme Court has allowed one exception to the rule that obscenity is not protected under the First Amendment. In *Stanley v. Georgia*, the Court held that "mere private possession of obscene material" is protected. The Court wrote:
> Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.
However, the Supreme Court rejected the claim that under *Stanley* there is a constitutional right to provide obscene material for private use, or to acquire it for private use. The right to possess obscene material does not imply the right to provide or acquire it. While sexually explicit material may be entitled to constitutional protection, the Court has said that the subcategories of obscenity and child pornography can generally be regulated without triggering heightened scrutiny.
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The Supreme Court defines obscenity using community standards
The First Amendment does not protect obscene material. However, the Supreme Court has allowed one exception to this rule. In *Stanley v Georgia*, the Court held that "mere private possession of obscene material" is protected. The Court wrote:
> Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.
The Justices have had difficulty defining obscenity and agreeing on how much the state can regulate it. The Supreme Court defines obscenity using community standards and other tests, such as the Miller test. The Court has said that the subcategories of obscenity and child pornography can generally be regulated without triggering heightened scrutiny.
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The Supreme Court has allowed one exception to the rule that obscenity is not protected under the First Amendment
The First Amendment does not protect obscene material. However, the Supreme Court has allowed one exception to the rule that obscenity is not protected under the First Amendment. In *Stanley v. Georgia*, the Court held that "mere private possession of obscene material" is protected. The Court wrote:
> Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.
Subsequently, however, the Supreme Court rejected the claim that under *Stanley* there is a constitutional right to provide obscene material for private use, or to acquire it for private use. The right to possess obscene material does not imply the right to provide or acquire it.
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The Court distinguishes traditionally obscene material from pornography
The First Amendment does not protect obscene material. However, the Supreme Court has struggled to define obscenity and how much the state can regulate it. In Stanley v. Georgia, the Court held that "mere private possession of obscene material" is protected. The Court wrote:
> Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.
The Court has distinguished traditionally obscene material from pornography. Pornography is only considered obscene if it meets the Miller test. The Court has also said that obscenity and child pornography can generally be regulated without triggering heightened scrutiny.
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The determination of whether pornography is considered obscene depends on the Miller test
The First Amendment does not protect obscene material. However, the Supreme Court has allowed one exception to this rule, stating that the "mere private possession of obscene material" is protected. The determination of whether pornography is considered obscene depends on the Miller test.
The Miller test is used to define obscenity and distinguish it from pornography. The test considers whether the material, on the whole, lacks serious literary, artistic, political, or scientific value. If it does, then it is considered obscene and not protected by the First Amendment.
The Court has said that subcategories of obscenity, such as child pornography, can generally be regulated without triggering heightened scrutiny. This means that the government can restrict access to or possession of obscene material without having to meet a higher standard of review.
The Miller test provides some insight into key considerations that will undoubtedly play a role in shaping future high-court holdings. However, the Justices have had difficulty defining obscenity and agreeing on how much the state can regulate it.
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Frequently asked questions
No, the First Amendment does not protect obscene material.
The Miller test is used to determine whether pornography is considered obscene.
In Stanley v. Georgia, the Supreme Court held that "mere private possession of obscene material" is protected.
No, the Justices have had difficulty defining obscenity and agreeing on how much the state can regulate it.
Yes, sexually explicit material may be entitled to constitutional protection, but the subcategories of obscenity and child pornography can generally be regulated without triggering heightened scrutiny.
