Isabella Carter
The First Amendment to the Constitution of the United States protects the right to free speech, but the Supreme Court has ruled that this does not extend to obscenity. Obscenity is a narrow category of sexually explicit expression that deals with a shameful or morbid interest in sex, depicts sexual matter in a patently offensive way, and has no serious literary, artistic, political or scientific value. The question of whether something is obscene is determined on a case-by-case basis, and the Supreme Court has created the Miller test to help courts make this determination.
| Characteristics | Values |
|---|---|
| Protection under the First Amendment | No |
| Definition | Obscenity is a very narrow category of sexually explicit expression that deals with a shameful or morbid interest in sex, depicts sexual matter in a patently offensive way, and has no serious literary, artistic, political or scientific value |
| Determination of 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 |
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The First Amendment
Obscenity is a very narrow category of sexually explicit expression that the U.S. Supreme Court has ruled is not protected by the First Amendment. Obscene material usually deals with a shameful or morbid interest in sex, depicts sexual matters in a patently offensive way, and has no serious literary, artistic, political or scientific value.
The Supreme Court created the Miller test for courts to use to determine whether material is obscene. The test for obscenity is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole".
Federal statutes ban obscenity and child pornography produced with real children. Federal law also bans broadcasting (but not cable or satellite transmission) of "indecent" material during specified hours.
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The Supreme Court
The First Amendment to the Constitution reads in part: "Congress shall make no law...abridging the freedom of speech, or of the press." The First Amendment rights to free speech and a free press begin as a prohibition on Congress passing laws restricting these freedoms. The Supreme Court has expanded First Amendment rights to encompass all forms of government action at every level through the passage of the Fourteenth Amendment and caselaw.
Obscenity is a very narrow category of sexually explicit expression that deals with a shameful or morbid interest in sex, depicts sexual matter in a patently offensive way, and has no serious literary, artistic, political or scientific value. Erotic art (including "classic nude forms" such as Michelangelo's David statue) and less respected commercial pornography are generally not considered obscene.
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State laws
While the First Amendment protects the right to free speech, the U.S. Supreme Court has determined that this protection does not extend to obscenity. The First Amendment to the Constitution reads, in part, "Congress shall make no law... abridging the freedom of speech, or of the press." The Supreme Court has expanded First Amendment rights to encompass all forms of government action at every level through the passage of the Fourteenth Amendment and caselaw. However, the Court has ruled that obscenity falls outside of these protections.
Obscenity is a narrow category of sexually explicit expression that deals with a shameful or morbid interest in sex, depicts sexual matters in a patently offensive way, and has no serious literary, artistic, political, or scientific value. The Supreme Court created the Miller test for courts to use to determine whether material is obscene.
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Child pornography
The First Amendment protects the 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. 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.
Obscene material usually deals with a shameful or morbid interest in sex, depicts sexual matters in a patently offensive way, and has no serious literary, artistic, political or scientific value. It is important to note that erotic art and less respected commercial pornography are generally not considered obscene.
The U.S. Supreme Court created the Miller test for courts to use to determine whether material is obscene. This test helps to establish whether the dominant theme of the material, taken as a whole, appeals to a prurient interest in sex, is patently offensive, and lacks serious literary, artistic, political, or scientific value.
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Broadcasting
Obscenity is not protected by the First Amendment, according to the U.S. Supreme Court. This means that obscene speech is not constitutionally protected. The First Amendment protects the right to free speech, but the Supreme Court has determined that this does not extend to several categories of unprotected speech, including obscenity.
The Supreme Court has created the Miller test for courts to use to determine whether material is obscene. This test considers whether the dominant theme of the material, taken as a whole, appeals to the prurient interest in sex, whether the material is patently offensive in light of community standards, and whether the material, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The determination of obscenity is not always clear-cut, and the line between protected and unprotected speech can be blurry. For example, erotic art and less respected commercial pornography are generally not considered obscene, while federal law bans child pornography produced with real children, even when it is not obscene.
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Frequently asked questions
No. The First Amendment protects our right to free speech, but the U.S. Supreme Court has determined that this protection doesn't extend to obscene speech.
Obscene material usually deals with a shameful or morbid interest in sex, depicts sexual matter in a patently offensive way, and has no serious literary, artistic, political or scientific value. However, the courts must determine in each case whether the material in question is obscene.
The Miller test is a test created by the U.S. Supreme Court for courts to use to determine whether material is obscene.
