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By David L. Hudson Jr.
First Amendment scholar

Pornography refers to material dealing with sex designed to arouse its readers or viewers. Webster’s Dictionary defines “pornography” as “writings, pictures, etc. intended primarily to arouse sexual desire.”

There are two types of pornography that receive no First Amendment protection — obscenity and child pornography. The First Amendment generally protects pornography that does not fall into one of these two categories — at least for adult viewers. Sometimes, material is classified as “harmful to minors” even though adults can have access to the same material.

Even a 1986 Attorney General Commission Report on Pornography said that “not all pornography is legally obscene.” The question becomes what types of pornography cross the line into the unprotected categories of obscenity and child pornography. Or to put it another way, courts often struggle with whether pornography is too “hard core.”

Obscenity remains one of the most controversial and confounding areas of First Amendment law. U.S. Supreme Court justices have struggled mightily through the years to define it. Justice Potter Stewart could provide no definition in Jacobellis v. Ohio other than exclaiming: “I know it when I see it.” In that 1964 decision, Stewart also said that the Court was “faced with the task of trying to define what may be indefinable.”

Justice Hugo Black expressed his frustration with determining whether certain pornography could be prohibited under the First Amendment when he wrote in Mishkin v. State of N.Y.: “I wish once more to express my objections to saddling this Court with the irksome and inevitably unpopular and unwholesome task of finally deciding by a case-by-case, sight-by-sight personal judgment of the members of this Court what pornography (whatever that means) is too hard core for people to see or read.”

After grappling with the obscenity problem in many cases during the late 1950s and early 1960s, the Supreme Court laid out “basic guidelines” for jurors in obscenity cases in its 1973 decision Miller v. California. These include:

  • 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 specifically defined by the applicable state law.
  • Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The Court reasoned that individuals could not be convicted of obscenity charges unless the materials depict “patently offensive hard core sexual conduct.” This means that many materials dealing with sex, including pornographic magazines, books, and movies, simply do not qualify as legally obscene.

Even more fundamentally, nudity does not equal obscenity. The Supreme Court recognized this in Jenkins v. Georgia, when it ruled that the film "Carnal Knowledge" was not obscene. Justice William Rehnquist wrote in that 1974 case that “nudity alone is not enough to make material legally obscene under the Miller standards.”

A most troubling aspect of obscenity law concerns the application of community standards for defendants who ship materials of a sexual nature to different parts of the country. Should a defendant in California be subject to the mores of a more conservative locale?

The Court in Miller said that it was constitutional for different communities to articulate different community standards in obscenity cases. “To require a State to structure obscenity proceedings around evidence of a national community standard would be an exercise in futility,” Chief Justice Warren Burger wrote.

“Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable ‘national standards’ when attempting to determine whether certain materials are obscene as a matter of fact,” Burger continued. “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City.”

A pressing legal issue still to be resolved is whether federal law can apply local community standards to the global medium of the Internet. The Child Online Protection Act applies local community standards in determining whether material is harmful to minors. The 3rd U.S. Circuit Court of Appeals struck down the law in June 2000, writing that “Web publishers cannot restrict access to their site based on the geographic locale of the Internet user visiting their site.”

In May 2002, the Supreme Court vacated the 3rd Circuit’s ruling in Ashcroft v. ACLU, saying that the federal appeals court jumped the gun by invalidating the law based on the community-standards criterion at the early stages of litigation. However, several justices expressed uneasiness with applying local community standards to the Internet. For example, Justice Stephen Breyer wrote in his concurring opinion that “to read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s veto affecting the rest of the Nation.”

The case remains in the lower federal courts. In the latest action, a three-judge panel of the 3rd Circuit again ruled in a March 2003 ruling that COPA was constitutionally flawed.

Child pornography
Another type of pornography that receives no First Amendment protection is child pornography. In 1982, the Supreme Court ruled in New York v. Ferber that states could prohibit child pornography even if somehow the material in question did not meet the Miller obscenity standard. The high court noted that a work taken as a whole could have serious artistic value but also “embody the hardest core of child pornography.”

The high court determined that the state had a compelling interest to prevent the sexual exploitation of minors in the making of child pornography. The Court called such an interest one of “surpassing importance.” The Court did recognize that child-pornography laws could be applied in a heavy-handed way: “Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy.”

In the 1990 case Osborne v. Ohio, the high court ruled that a state could punish even the private possession and viewing of child pornography. The defendant argued that the state was punishing a thought crime, but the majority of the Court disagreed. “Rather, Ohio has enacted … [the law] … in order to protect the victims of child pornography; it hopes to destroy a market for the exploitative use of children.”

Not all child pornography statutes are immune from First Amendment challenge. In April 2002, the Court struck down two provisions of the 1996 Child Pornography Prevention Act in Ashcroft v. Free Speech Coalition.

The CPPA expanded the definition of child pornography to include “any visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” The other challenged provision banned any sexually explicit material that is advertised or promoted in a way that “conveys the impression” that a minor is engaging in sexually explicit conduct.

In other words, the “appears to be a minor” and “conveys the impression” clauses of the CPPA classified certain material as child pornography even though no actual minors were involved. The government asserted that it needed these provisions to target so-called “virtual child pornography.” The government argued the law was needed to keep pace with technology — that it was becoming harder to determine if certain images contained pictures of actual children.

However, the majority of the Court was bothered the breadth of the language in the CPPA. The justices noted that the law could theoretically be applied to certain Hollywood movies that use youthful adult actors in sexual scenes or even to Renaissance paintings. The Court noted that the CPPA “proscribes a significant universe of speech that is neither obscene under Miller nor child pornography under Ferber.”

Indecent speech
Much sexual expression does not meet the legal definition of obscenity or child pornography. But, society simply doesn’t want this material to fall into the hands of minors. Thus, many states have regulated other forms of sexual speech that are “indecent” but not obscene.

The Supreme Court, for instance, ruled in 1978 that the Federal Communications Commission could limit the transmission of indecent speech on the radio during hours when children are likely to be listening. That case dealt with a fine imposed on a radio station that played George Carlin’s “Filthy Words” monologue during daytime hours. The Court’s ruling in FCC v. Pacifica has been largely confined to the broadcast medium.

As for other media, the Court has ruled that the government cannot use the protection-of-minors rationale to shield adults from viewing indecent material. In the 1989 dial-a-porn case, Sable Communications of California, Inc. v. FCC, the Supreme Court bluntly stated that “sexual expression which is indecent but not obscene is protected by the First Amendment.” The Court also has struck down prohibitions on indecent speech on the Internet and cable television.


'Rare' obscenity prosecution signals new crackdown

California couple indicted by federal grand jury for allegedly distributing obscene materials in western Pennsylvania; Justice Department plans stepped-up efforts against 'proliferation of adult obscenity.' 08.09.03

4th Circuit overturns Virginia Internet porn law
Federal appeals court rules state law limiting juveniles' access to indecent material online imposes unconstitutional burden on adult expression. 03.26.04

Charges dismissed against California porn business
Federal judge finds prosecutors went too far in trying to block availability of videos depicting rape, murder. 01.25.05

Bush administration continues obscenity crackdown
Critics say government's stepped-up effort is assault on free speech, expression — however distasteful. 05.05.05

3rd Circuit asked to reinstate obscenity case
U.S. attorney tells three-judge panel that lower court erred in ruling that right to distribute obscene materials flows from privacy right. 10.20.05

Obscenity charges against porn sellers reinstated
3rd Circuit ruling represents step forward for Bush administration, which has ramped up federal obscenity prosecutions. 12.09.05

Man accused of downloading child porn can be charged with making it
Ruling by Michigan appeals court means former township treasurer could face 20-year felony. 01.30.06

Paroled sex offender can be blocked from possessing porn
2nd Circuit: Non-obscene materials that 'receive full First Amendment protection when in the possession of ordinary adults … may be regulated in the hands of parolees.' 06.01.06

Texas agency blocked from seizing porn without court OK
Judge rules Texas Alcoholic Beverage Commission must first obtain judicial finding that materials to be confiscated are obscene. 07.28.06

Pa. woman charged with obscenity for online child-torture stories
Federal prosecutors say Web site contained excerpts of fictional stories about child sex, torture, murder that were available to all visitors. 09.28.06

Kan. grand juries to launch obscenity investigations
Responding to petitions filed by anti-pornography group, courts in two counties have begun selecting panels that could decide what's too obscene for businesses to sell. 07.17.07

Court refuses to suppress statements in child-torture tales case
Pennsylvania woman is charged with one count of obscenity for each of six graphic, fictional stories published on her Web site. 01.30.08

Federal jury in Fla. convicts man in obscenity case
Paul Little's attorneys had argued that pornographic films he produced were protected by First Amendment, but Tampa jurors find movies violate community standards for decency. 06.09.08

Producer of extreme videos goes on trial in L.A.
Federal prosecutors think they can prove Ira Isaacs' movies violate community obscenity standards, even in nation's reputed pornography capital. 06.11.08

Profanity & the First Amendment
By Scott Felsenthal Generally profanity is considered protected speech, but there are situations when its use can be punishable. 05.02.07

Constructing a red-light district on the Internet
By Paul K. McMasters Wouldn't a '.xxx' domain protect people from porn while protecting it from censorship? Yet folks on both sides of the pornography debate oppose the idea. 08.28.05

Too much sex or too much law?
By Paul K. McMasters Protecting kids from porn and smut — without criminalizing protected speech — can be a complicated legal business. 11.19.06

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