The term obscenity denotes offensiveness to modesty or decency, typically in terms of human communication about sex or sexuality. As a legal concept, the term long resisted clear definition, especially during a 16-year period between 1957 and 1973 when the U.S. Supreme Court encountered the issue repeatedly. No majority of the High Court, before or since, ever deviated from the view that obscenity, like libelous and seditious expression, had blanket constitutional protection for socially injurious content. Yet, the subjective nature of the concept produced multiple failed attempts by the judiciary to delineate its scope and limits.
In 1957, the Court first engaged in extended analysis of the constitutional status of such communication in companion cases styled Samuel Roth v. United States and David Alberts v. State of California. The relevant provisions of the U.S. Constitution that the defendants invoked were the freedoms of speech and press imbedded within the First Amendment. Ratified in December 1791, these expressive liberties have remained at the apex of the Bill of Rights ever since, often inspiring momentous confrontations in this country’s courtrooms and legislative chambers. Typical adversaries in obscenity cases are government officials seeking to protect the social interest in public morality challenged by an individual, organization, or commercial entity claiming the legal right to convey a message by verbal, printed, or visual means.
Samuel Roth had been convicted of violating a federal statute that criminalized mailing obscene advertisements, which had been seized by U.S. postal inspectors. David Alberts had been convicted under a state law prohibiting similar conduct. A divided
Supreme Court affirmed both convictions. Associate Justice William Brennan observed that the government need not show empirical evidence of harm to society because speech or press that exhibits no redeeming social importance cannot find shelter in the First Amendment. Writing for the majority, Brennan relied on the Model Penal Code of the American Law Institute to point out that obscenity was synonymous with a shameful or morbid interest in nudity, sex, or excretion that goes substantially beyond customary limits of candor in description or representation. Justices William O. Douglas and Hugo Black disagreed. For them, the legality of communication should not pivot on the reaction of the reader or listener. From their perspective, Roth and Alberts were being punished for thoughts provoked in others rather than for overt antisocial conduct.
Over the course of the following decade, as the membership of the Supreme Court underwent only moderate change, arriving at a consensus about the legal standard of obscenity proved elusive. By 1964, for example, Associate Justice Potter Stewart conceded that to him formulating a legal standard that consistently distinguished constitutionally unprotected obscenity from constitutionally protected pornography was an impossible task. Justice Brennan was not so easily deterred. In 1966, a case styled A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts elicited a quite different standard than had Roth and Alberts. Brennan’s far more permissive definition stipulated that three elements must coalesce in order for prior criminal convictions to be sustained on appeal. In broad outline, the Memoirs standard required proof beyond reasonable doubt that expression alleged to be obscene was (1) wholly devoid of social value; (2) patently offensive to prevailing social sentiment across the country in its description of sex; and (3) thematically focused on salacious depiction of sexual conduct.
By the start of the Supreme Court’s 1972 annual term, Chief Justice Warren Burger had replaced Earl Warren and Associate Justices Hugo Black and John Harlan had given way to Lewis Powell and William Rehnquist. On June 21, 1973, a pair of cases decided by the narrowest of margins in Miller v. California and Paris Adult Theatre I v. Slaton heralded a remarkable judicial about-face in the constitutional law of obscenity that has persisted ever since. Miller had been convicted of mailing unsolicited, sexually explicit advertising brochures in violation of a provision of the state criminal code that had incorporated the obscenity standard announced in Memoirs v. Massachusetts. Fulton County, Georgia, District Attorney Louis Slaton had sought an injunction against the owners of Paris Adult Theatres to restrain commercial exhibition of two films alleged to be obscene under a state law that tracked the Roth standard more closely than Memoirs.
Chief Justice Burger and Associate Justices White, Blackmun, Powell, and Rehnquist sustained enforcement of both the California criminal code provision and the Georgia civil injunction. Their endorsement of what became known as the Miller Test served as a model for subsequent national legislation enacted by Congress and as a minimum standard of the freedom of speech and press in state-by-state legislation as well. Under this so-called Miller Test, the defining characteristics of obscenity are that (a) the average person would find the expression to appeal to prurient interest in sex; (b) the expression is patently offensive in its description or depiction of sexual conduct in light of local community sentiments; and (c) the expression is devoid of serious value on a political, literary, artistic, or scientific basis.
Nine years later, in 1982, the U.S. Supreme Court announced a unanimous decision in State of New York v. Paul Ferber. Ferber owned an adult book store in Manhattan. He had been convicted of violating a 1977 New York statute prohibiting production or dissemination of films or photographs involving children or using children in live sexual performances, even if such expression was legally obscene. While this opinion written by Justice White did not alter the Miller Test for obscenity, it did establish a new category of expression—child pornography—as outside the protection of the First Amendment and a novel rationale for censoring it: the physical and psychological well-being of minors. Then, in 1990, the Supreme Court extended the reach of Ferber by rejecting a First Amendment challenge and upholding Ohio legislation that criminalized possession or viewing of child pornography in the home.
With the 1990s advent of electronic communication, the U.S. Congress passed a series of statutes designed to curtail access by minors to sexually explicit material found on the Internet. The Communications Decency Act of 1996 criminalized posting indecent content readily accessible to children on the Internet. A unanimous Supreme Court invalidated the CDA in 1997 in Janet Reno v. American Civil Liberties Union. The vagueness of the concept of indecency, said the Court, violated the First Amendment due to overly broad government suppression of speech addressed to adults.
The next year, 1998, Congress approved the Child Online Protection Act. Known by the acronym COPA, the statute required that commercial Web sites verify proof of age before granting access to sexually explicit expression defined by law as obscene for minors. Variable obscenity—the principle that expression entitled to First Amendment protection when intended for adults might still be classified as obscene when intended for minors—had received a qualified endorsement in 1968 by a divided Supreme Court in Ginsberg v. New York. By June 2004, the judicial reception was less accommodating, as the Supreme Court sustained an injunction against enforcement of COPA previously imposed by a federal district court in 1999. American Civil Liberties Union v. Attorney General John Ashcroft ordered the lower court to consider whether ongoing advancements in filtering technology could protect children more effectively and with fewer affronts to the freedom of speech than the criminal sanctions provided by COPA.
Finally, in 2000, Congress enacted the Children’s Internet Protection Act (CIPA). Under provisions that became effective in April 2001, libraries and schools receiving federal technology funding were required to install pornography-blocking software on their computers. The American Library Association (ALA) filed suit in federal court in Pennsylvania, alleging that the statute as written abridged the freedom of speech guaranteed by the First Amendment. Following a trial court decision in favor of the ALA in May 2002, the U.S. Supreme Court reversed that result, upholding the law as it applied only to libraries in June 2003. The school provisions of CIPA remained in effect without legal challenge thus far.
- Brown, Sandra Z. 1982. “First Amendment, Non-Obscene Child Pornography and Its Categorical Exclusion from Constitutional Protection.” Journal of Criminal Law and Criminology 73(4):1337-64.
- Faucette, Jeffrey E. 1995. “The Freedom of Speech at Risk in Cyberspace: Obscenity Doctrine and the Frightened University’s Censorship of Sex on the Internet.” Duke Law Journal 44(6):1155-82.
- Jaeger, Paul T., John C. Bertot, and Charles L. McClure. 2004. “The Effects of the Children’s Internet Protection Act (CIPA) in Public Libraries and Its Implications for Research: A Statistical, Policy and Legal Analysis.” Journal of the American Society for Information Science and Technology 55(13):1131-39.
- Laughlin, Gregory K. 2003. “Sex, Lies and Library Cards: The First Amendment Implications of the Use of Software Filters to Control Access to Internet Pornography in Public Libraries.” Drake Law Review 51:213-76.
- Linz, Daniel, Edward Donnerstein, Bradley J. Shafer, Kenneth C. Land, Patricia L. McCall, and Arthur C. Graesser. 1995. “Discrepancies between the Legal Code and Community Standards for Sex and Violence: An Empirical Challenge to Traditional Assumptions in Obscenity Law.” Law and Society Review 29(1):127-68.
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