Simone Lawson
The First Amendment protects the right to free speech, but the U.S. Supreme Court has ruled that this protection does not extend to obscenity. The Court's consistent position has been that obscenity is not within the area of constitutionally protected speech or press. This article will explore the Court's decisions on obscenity and the First Amendment, and discuss whether there are any exceptions to this rule.
| Characteristics | Values |
|---|---|
| Is obscenity constitutionally protected speech? | No |
| What is obscenity? | 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. |
| What is the test for obscenity? | "Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole..." |
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What You'll Learn
The Supreme Court's position on obscenity
The Supreme Court has struggled to define what embodies constitutionally unprotected obscene material. Under the Comstock laws controlling mail distribution that prevailed before Roth v. United States, any material that tended to "deprave and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis.
In Miller v. California, the Supreme Court clarified the legal definition of obscenity as material that lacks "serious literary, artistic, political, or scientific value". The ruling was the origin of the three-part judicial test for determining obscene media content that can be banned by government authorities, which is now known as the Miller test.
Justice William Brennan argued that the Court’s Roth approach allowing the suppression of pornography was a failure, and that the Court had not and could not formulate standards by which protected materials could be distinguished from unprotected materials. He pushed for First Amendment protection for all "obscenity" unless distributed to minors or exposed offensively to unconsenting adults.
The Supreme Court has rejected the idea that the First Amendment applies only to the exposition of ideas, saying [t]he line between the informing and the entertaining is too elusive for the protection of that basic right.
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The First Amendment and free speech
The First Amendment protects our right to free speech, but the U.S. Supreme Court has determined that this protection doesn't extend to several categories of unprotected speech, including 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 Supreme Court's consistent position has been that "obscenity is not within the area of constitutionally protected speech or press." The Court created the following test for obscenity: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole." 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.
Speech about sex and sexuality receives protection under the First Amendment, and this protection extends to many forms of pornography. However, certain types of sexually explicit expression are not protected. For example, in United States v. Roth, 1956, Roth had been convicted in a district court of distributing material alleged to be "obscene, lewd, lascivious, filthy and of an indecent character", and had been imprisoned for five years. On appeal, he claimed that the statute he had been convicted under violated the First Amendment. The Supreme Court upheld his conviction, writing that "obscenity is not within the area of constitutionally protected speech or press."
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What constitutes obscenity
Obscenity is not protected by the First Amendment. The U.S. Supreme Court has ruled that obscenity is a very narrow category of sexually explicit expression that 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.
Obscenity is a legal term that refers to a type of speech or expression that is considered offensive or indecent, particularly with regard to sexual matters. It is often associated with pornography, which is a form of sexually explicit expression. While some forms of pornography are protected by the First Amendment, certain types of sexually explicit expression are not.
The Supreme Court has determined that the protection of free speech under the First Amendment does not extend to several categories of unprotected speech, including obscenity. This means that states may prosecute for obscenity within the constraint of the First Amendment. The Court's consistent position has been that "obscenity is not within the area of constitutionally protected speech or press".
The Court has created a test for obscenity, which considers whether the dominant theme of the material, taken as a whole, appeals to a shameful or morbid interest in sex and depicts sexual matters in a patently offensive way. The test also considers whether the material has any serious literary, artistic, political or scientific value. If the material meets these criteria, it may be considered obscene and therefore not protected by the First Amendment.
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The Fourteenth Amendment and caselaw
The Fourteenth Amendment, which was passed after the First Amendment, expanded these protections to encompass all forms of government action, not just Congress. This means that any level of government, from federal to local, is prohibited from restricting freedom of speech and the press. The Fourteenth Amendment has been instrumental in ensuring that the protections of the First Amendment are applied consistently across the country, regardless of the level of government.
In the context of obscenity, the Supreme Court has consistently held that it falls outside the scope of constitutionally protected speech. This position was affirmed in the case of *Roth v. United States* (1957), where the Court upheld the conviction of an individual for distributing obscene material. The Court's ruling emphasised that obscenity is not protected by the First Amendment, even when it involves sexually explicit expression.
The Court has defined obscenity as 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 lacks any serious literary, artistic, political, or scientific value. This definition sets a high bar for what constitutes obscenity, ensuring that only the most extreme and offensive forms of expression are considered obscene.
In conclusion, the Fourteenth Amendment and caselaw have been instrumental in shaping the understanding of obscenity and its relationship to constitutionally protected speech. The Supreme Court has consistently held that obscenity falls outside the protections of the First Amendment, and the Fourteenth Amendment has ensured that these protections are applied consistently across all levels of government. The Court's rulings and definitions of obscenity have provided a framework for evaluating whether material is obscene, taking into account community standards and the specific characteristics of the expression.
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The Roth case
The Court's decision in the Roth case has had a significant impact on the understanding of what constitutes obscenity and how it is treated under the law. The Court created a test for obscenity, which considers the dominant theme of the material and whether it appeals to a prurient interest in sex. This test has been used to determine whether material is obscene and therefore not protected by the First Amendment.
The case also brought attention to the distinction between obscenity and other forms of sexually explicit expression. While obscenity is not protected by the First Amendment, other forms of sexually explicit expression may be protected if they have serious literary, artistic, political, or scientific value. This distinction can be difficult to draw, and there has been substantial discussion and debate about the empirical evidence justifying the Court's conclusion in the Roth case.
Overall, the Roth case is a significant example of the U.S. Supreme Court's approach to obscenity and the First Amendment. It has shaped the understanding of what constitutes obscenity and how it is treated under the law, with important implications for free speech and expression.
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Frequently asked questions
No, the U.S. Supreme Court has ruled that obscenity is not protected by the First Amendment.
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.
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.
