Eleanor Finch
The First Amendment of the US Constitution protects freedom of speech and the press. However, the Supreme Court has ruled that child pornography is not protected by the First Amendment. Obscenity is also not protected by the First Amendment, and can be banned on the basis of its content.
| Characteristics | Values |
|---|---|
| Protected by the First Amendment | Yes, unless it is obscene or child pornography |
| Considered a form of personal expression | Yes |
| Exploitative | Yes |
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What You'll Learn
- Child pornography is not protected by the First Amendment
- Obscenity is not protected by the First Amendment
- The First Amendment protects freedom of speech and the press
- The Supreme Court has declared that section 223(b) is unconstitutional
- The First Amendment protects adults' rights to access indecent messages
Child pornography is not protected by the First Amendment
Pornography is generally protected by the First Amendment, unless it is obscene or involves children. In 1973, the Supreme Court of the United States held in Miller v. California that pornography is protected speech unless it is obscene. However, child pornography is not protected by the First Amendment.
In 1982, the Supreme Court held in New York v. Ferber that child pornography, even if not obscene, is not protected speech. The court gave several justifications for this, including that the government has a compelling interest in safeguarding the physical and psychological well-being of minors. Child pornography is a form of sexual expression that often involves the depiction of children engaged in sexually explicit conduct. It is similar to obscenity in that it represents a category of sexual expression lacking First Amendment protection, but it covers material that does not meet the legal definition of obscenity.
The federal and state governments have passed numerous statutes outlawing child pornography and protecting children from obscenity. Courts have applied the generally speech-protective strict scrutiny standard, which requires that the government demonstrate a compelling interest and ensure that a law is narrowly tailored to achieve that interest by using the least restrictive means.
The First Amendment to the U.S. Constitution states, in part, "Congress shall make no law...abridging the freedom of speech." This language tells us that the First Amendment freedom of speech begins as a prohibition on Congress. Specifically, the First Amendment prohibits Congress from passing laws that infringe on the right to free speech. Through case law and the passage of the Fourteenth Amendment, the U.S. Supreme Court has extended the First Amendment to governmental action of any kind and at any level.
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Obscenity is not protected by the First Amendment
The First Amendment protects pornography as a form of personal expression. However, the Supreme Court has held that the First Amendment does not protect two types of pornography: obscenity and child pornography.
Obscenity is a narrow category of pornography that violates contemporary community standards and has no serious literary, artistic, political or scientific value. It is defined as material that appeals to the prurient interest and depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
The Supreme Court has denied First Amendment protection to obscenity without regard to whether it can cause harm. This is because there is evidence that, at the time of the adoption of the First Amendment, obscenity "was outside the protection intended for speech and press". Consequently, obscenity may be banned simply because a legislature concludes that banning it protects "the social interest in order and morality".
Child pornography is also not protected by the First Amendment, but for different reasons. In 1982, the Supreme Court held in New York v. Ferber that child pornography, even if not obscene, is not protected speech. The court gave a number of justifications for this, including that the government has a compelling interest in safeguarding the physical and psychological well-being of minors.
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The First Amendment protects freedom of speech and the press
The Supreme Court has held that the First Amendment does not protect child pornography. In June 1989, the Supreme Court also declared section 223 (b) unconstitutional, as it applied to indecent messages that were not obscene. The Court noted that while the government has a legitimate interest in protecting children from exposure to indecent dial-a-porn messages, the statute was not narrowly drawn enough to serve that purpose and thus violated the First Amendment.
An outright ban on pornography other than obscenity or child pornography would violate the First Amendment unless it served "to promote a compelling interest" and was "the least restrictive means to further the articulated interest." This means that pornography that does not constitute obscenity or child pornography may only be regulated with respect to its time, place, and manner of distribution.
The First Amendment's protection of freedom of speech and the press is an important principle that ensures individuals' rights to express themselves and access information. However, there are some limitations to this protection, as seen in the case of obscenity and child pornography.
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The Supreme Court has declared that section 223(b) is unconstitutional
In June 1989, the Supreme Court declared section 223(b) unconstitutional. This was in relation to indecent messages that are not obscene. The Court noted that, while the government has a legitimate interest in protecting children from exposure to indecent dial-a-porn messages, section 223(b) was not sufficiently narrowly drawn to serve that purpose and thus violated the First Amendment. The Court suggested that credit card, access code, and scrambling rules would have represented a 'feasible and effective' way to serve the government's compelling interest in protecting children. The government argued that these methods would not be effective enough, but the Court found no evidence to support this claim. The Court concluded that the statute's denial of adult access to telephone messages that are indecent but not obscene far exceeds that which is necessary to limit the access of minors to such messages.
The First Amendment states that "Congress shall make no law ... abridging the freedom of speech, or of the press." Although pornography in general is protected by the First Amendment, two types of pornography—obscenity and child pornography—are not. Therefore, pornography that does not constitute obscenity or child pornography may ordinarily be regulated only with respect to its time, place, and manner of distribution. An outright ban on pornography other than obscenity or child pornography would violate the First Amendment unless it served "to promote a compelling interest" and was "the least restrictive means to further the articulated interest."
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The First Amendment protects adults' rights to access indecent messages
In the United States, pornography is considered a form of personal expression governed by the First Amendment to the United States Constitution. The First Amendment states that "Congress shall make no law... abridging the freedom of speech, or of the press". This means that, for adults at least, most pornography receives constitutional protection. However, two types of pornography are not protected by the First Amendment: obscenity and child pornography.
Obscenity refers to a narrow category of pornography that violates contemporary community standards and has no serious literary, artistic, political or scientific value. Child pornography is also not protected by the First Amendment, but for different reasons. In 1982, the Supreme Court held in New York v. Ferber that child pornography, even if not obscene, is not protected speech. The court gave a number of justifications for this, including that the government has a compelling interest in safeguarding the physical and psychological well-being of minors.
The Supreme Court's decision to protect pornography under the First Amendment has been controversial. Critics argue that the porn industry has sexually abused countless young children and then broadcast the video or image of their abuse to the whole world on sites like Pornhub. They also argue that the industry has exploited countless lives both on screen and those who have viewed the content.
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Frequently asked questions
Pornography in general is protected by the First Amendment, but two types of pornography—obscenity and child pornography—are not.
Obscenity and child pornography are not protected by the First Amendment.
Yes, the government can ban obscenity and child pornography on the basis of their content.
No, the government cannot ban pornography that is protected by the First Amendment. However, they can regulate the time, place, and manner of its distribution.
The First Amendment is a provision in the Constitution that states: "Congress shall make no law ... abridging the freedom of speech, or of the press."
