Chapter Ten
Objectives
• To understand the evolution of obscenity
law in the United States
• To explain current obscenity and
pornography laws.
• To explain other forms of censorship
dealing with obscenity and pornography
Obscenity, pornography,
indecency defined
• Not just semantics—different legal definitions!
– All three deal with sexual and/or excretory subject
matter
• Obscenity: meets Miller standard, has no 1A
protection at all
• Pornography: generic term for sexual content
that has 1A protection (i.e.,
not obscene)
• Indecency: lower standard of
protection for broadcast
media (TV and radio)—may
only be pornographic if written down
Three tests for obscenity
• Hicklin test
• Roth test
• Miller test
Regina v. Hicklin (1868 England)
• Obscenity present if “tendency…
is to deprave and corrupt those
whose minds are most open to
such immoral influences and into
whose hands [it] may fall”
(Overbeck, p. 394)
– Allowed judges to remove suspect
passages from contexts and examine
in light of effects they might have on
most susceptible individuals
• Court eventually threw out, since
it permitted severing and lowest
common denominator
Roth starts the ball rollin’
• Roth v. United States (1957): Roth convicted
under fed. obscenity law for selling obscene books
– Court upheld; Brennan first obscenity def’n
– Obscenity gets no 1A protection—little social value
– Hicklin too restrictive—new standard: “whether to the
average person, applying contemporary
community standards, the dominant
theme of the matter taken as a whole
appeals to the prurient interest” and is
“utterly without redeeming social
importance”
– Attempted to define “prurient interest:”
“tendency to excite lustful thoughts”
Roth test is expanded
• Jacobellis v. Ohio (1964):
Jacobellis convicted
under OH law when he
showed Les Amants
– Community standards =
national standards, said
Justice Brennan
Roth test v. Hicklin test
• Material that was offensive to children or overly
sensitive persons was no longer declared obscene
for all.
• The entire work, not just a part of a book or film,
must be considered when determining whether it
was obscene.
Struggling with Roth
• Memoirs v. Massachusetts
(1966) (a.k.a. Fanny Hill):
Brennan said any value was
enough to save a work from
Roth’s “utterly without social
importance,” no matter how
minimal
– Thus, a work could not be
considered obscene if it had
“social value.”
The Warren Court, 1966
Government alternatives to the
burden of proving obscenity
• Ginzberg v. U.S., 1966
• Redrup v. New York, 1967
• Ginzberg v. New York, 1968
Struggling with Roth
• Ginzberg v. U.S. (1966): Court avoided
obscenity question by saying that Ginzberg had
violated fed. obscenity law by mailing porn
from Middlesex, NJ (after having tried
Intercourse and Blue Ball, PA)
• Redrup v. New York (1967): 6 years of “Reverse
on Redrup”—any material not held to be
obscene by majority of justices applying own
standards was not obscene and therefore
protected under 1A…so…
Struggling with Roth
• Ginsberg v. New York (1968): Ginsberg
violated NY state law selling materials to
minors; Court upheld conviction and
“variable obscenity” (kids vs. adults)
– Sum effect of these decisions: Obscenity
prosecutions allowed under special
circumstances even though it had become
almost impossible to prove a work was legally
obscene to adults.
Warren court reaches it peak
•
•
•
•
Stanley v. Georgia, 1969
U.S. v. Reidel, 1971
U.S. v. Thirty-Seven Photographs, 1971
U.S. Twelve 200-Foot Reels of Super 8-mm
Film, 1973
Struggling with Roth
• Stanley v. Georgia (1969):
constitutional right to
possess even obscene
materials in privacy of
one’s own home (Court
subsequently backed
away from this idea)
Struggling with Roth
• U.S. v. Reidel, 1971: Upheld law banning
mailing of obscene material to adults.
• U.S. v. 37 Photographs, 1971: Customs
could seize obscene materials brought
from overseas.
• U.S. v. 12 200-Ft. Reels of Super 8-mm
Film, 1973: If you bring obscene material
from abroad and get it to your home, you
are safe.
The major case:
Miller v. California (1973)
• Miller convicted under CA law for massmailing ads for sexually explicit materials
• Miller’s impact:
– Reaffirmed Roth: obscenity gets
no 1A protection
– Criticized Memoirs’ “utterly”
clause— can’t prove a negative
– Formulated new three-part test
– Gave examples of second part
– Only hard-core sexual content
was to be punishable
– Standards = “contemporary community”—not
national! (important for discussion of Internet porn)
Miller’s three-part test
• (1) whether average person, applying contemporary
community standards, would find work, taken as a
whole, appeals to prurient interest
• (2) whether work depicts or describes, in a patently
offensive way, sexual conduct defined by applicable
state law
– P.O. representations/descriptions of ultimate sex acts,
normal or perverted, actual or simulated; or
masturbation, excretory functions, lewd exhibition of
genitals
• (3) whether work, taken as a whole, lacks serious
literary, artistic, political or scientific value
Miller Part I: Prurient interest test
• (1) Apply local (usually state) standards rather than
a national standard
• (2) The jury (or judge if there is not a jury)
determines the standard, based on its knowledge of
what is acceptable in the community
Miller Part II: Patently offensive
test
• (1) Only so-called hard-core pornography can be
found to be patiently offensive.
• (2) The state legislature or the state supreme court
must specifically define the kind of offensive
material that may be declared to be obscene.
Miller Part III: Serious value test
• (1) Whether the material lacks serious literary,
artistic, political, or scientific value, is a question of
law, not of fact, to be decided in large part by the
judge.
What does the Miller test mean?
•
•
•
•
Well, hard to say…
Who is an average person?
What are community standards?
What does “patently offensive” mean?
“Prurient interest”?
What does the Miller test mean?
• An average person?
– The trial judge or jury must rely on knowledge
of standards of the residents of the community
to decide whether the work appeals to a
prurient interest.
– The juror is not supposed to use his or her
own standards.
What does the Miller test mean?
• Community standards?
– Definition of community standards is a key to
the first part of the Miller test.
– State standard.
What does the Miller test mean?
• Patently offensiveness?
– A work is obscene if it depicts in a patently
offensive way sexual conduct specifically
defined by applicable state law.
– Patent offensiveness it to be judged using
contemporary community standards.
– Only hard-core sexual material meets the
patently offensive standard.
What does the Miller test mean?
•
•
•
•
Well, hard to say…
Who is an average person?
What are community standards?
What does “patently offensive” mean?
“Prurient interest”?
• What is enough value?
Child pornography
• New York v. Ferber (1982): Court unanimously
upheld conviction of Paul Ferber, owner of
adult bookstore, of violating NY statute
prohibiting showing children in sexual conduct
– Visual sexual portrayals of minors
denied 1A protection
– States have compelling interest in
protecting children and should have
substantial power to root out and
punish crime—can go beyond Miller
test to punish child exploitation
• Osborne v. Ohio (1990): statutes that
punish ownership of child porn also OK—
destroy market
But…virtual kids?
• Ashcroft v.Free Speech Coalition (2002):
Court overturned part of Child Porn
Protection Act banning computergenerated images and images that only
“appear” to show minors in sexual
activity
– Because no kids harmed,
computer-generated porn
is OK
– But images of real kids
morphed to look like they are
in sex acts are not OK
Provisions of Child Pornography
Prevention Act still in place
• FORBIDS—
– Creation, sale or mere possession of images of
real children engaging in sex acts.
– Altering images of real children to make it
appear they are engaging in sex acts.
– Producing, selling or possessing computergenerated images that are legally obscene.
Indecency
• Different from obscenity in that it need not
appeal to prurient interest
• Indecent speech is protected in some media
(e.g., print) but not in others (e.g., broadcast)
• Federal criminal code provides that “whoever
utters any obscene, indecent, or profane
language by means of radio communication
shall be fined not more than $10,000 or
imprisoned not more than two years, or both”
Major indecency case
• FCC v. Pacifica Foundation (1978):
first case on indecency—George
Carlin’s “Filthy Words” monologue
– Court said “obscenity” and “indecency”
intended to be different standards, and
indecency considered “nonconformance
with accepted standards of morality”
– Easier to prove that something is indecent
than obscene, and Court said OK because
electronic media is so pervasive that
requires lower standard and more
regulation
– “Safe harbors”
Indecency in cable
• Denver Area Educational Telecommunications
Consortium v. FCC (1997): questioned
constitutionality of Cable TV and Consumer
Protection Act of 1992’s indecency clauses
– Very fractured Court still doesn’t know what to
make of indecency on cable
– Two things justices agreed on:
(1) protecting children from
indecent programming on cable
is compelling gov’t interest;
and (2) cable companies cannot
block indecent content on public
access channels and make customers take initiative
to unblock
Indecency on the telephone
• Sable Communications of California v. FCC
(1989): Court struck down legislation
outlawing telephone indecency or “dial-aporn” as 1A violation
– Regulation not narrowly
tailored enough to serve
governmental interest of
protecting kids from
indecent
messages
Online pornography:
two laws, five cases
• Communications Decency Act of 1996 (CDA):
passed as part of large Telecom Act
– Criminalized “knowing transmission of obscene or
indecent messages to minors” and “knowing sending
or displaying of patently offensive messages in a
manner available to a minor”
– Affirmative defenses: age verification and “good
faith” attempts to keep sexual material away from
minors
• ACLU and other plaintiffs
challenged as overbroad and
vague
ACLU v. Reno I (E.D. Pa. 1996)
• Three-judge panel found CDA to
be unconstitutionally overbroad
and “chilled” protected adult
communication
– Panel provided exhaustive
examination of Internet that Supreme
Court later used
• Preliminary injunction issued
• Immediate appeal to Supreme
Court provided as part of CDA
Reno v. ACLU II (1997)
• Supreme Court agreed with lower court
• Justice John Paul Stevens wrote: “In order to
deny minors access to potentially harmful
speech, the CDA effectively suppresses a large
amount of speech that adults
have a constitutional right to
receive and to address to one
another”
– Breadth of CDA said to be
“wholly unprecedented”
• Congress back to drawing
boards...
Porn law, take two
• Child Online Protection Act of 1998:
passed after CDA failed
– Makes it illegal for anyone to “make[] any
communication for commercial purposes that
is available to any minor and that includes
any material that is harmful to minors”
(emphasis added)
– Aimed at “teasers”
– Affirmative defenses: credit card or age
verification device, acting in good faith
ACLU v. Reno III (E.D. Pa 1999)
• On Feb. 1, 1999, district court entered
preliminary injunction against COPA’s
enforcement
– COPA would result in ’Net self-censorship and
burden speech protected for adults
– Although gov’t does have compelling interest to
protect minors from online
porn, COPA not narrowly
tailored, nor did it use least
restrictive means to achieve
– Age cannot be verified, so
cannot use age verification
tools to achieve goal
• Gov’t appealed to 3CA
Reno v. ACLU IV (3CA 2000)
• Judge agreed with lower court in declaring
COPA unconstitutional
• But instead of worrying about age verification,
3CA addressed Miller’s “community standard:”
– “Miller, however, has
no applicability to the
Internet and the Web,
where Web publishers
are currently without
the ability to control the
geographic scope of the
recipients of their
communications”
Most current:
Ashcroft v. ACLU (2002)
• Use of community standards online does not
violate 1A, but law not upheld
• Court sent case back to lower court for
reconsideration
• 8-1 decision said that
community standards
were reasonable to use to
judge websites, but what
community still is uncertain
Filtering public computers?
• Child Internet Protection Act of 2001
(CIPA): any library receiving federal
funding to reduce online costs mandated
to put filters on any computer offering
online access
– Lower court
overturned as
overbroad, would
filter content that is
not illegal for adults
Filtering public computers 
• U.S. v. American Library Association
(June 24, 2003): Supreme Court
overturned lower court: filtering not
1A violation because adults can ask
for it to be turned off, and libraries
must often make acquisition
decisions
– 6-3 decision, no majority, but plurality
upheld CIPA 
Zoning
• Keeping adult content together, or away from
schools and churches
• Upheld generally as constitutional; can zone
into “red light” districts or away from
kids, but cannot ban altogether
– Young v. American Mini-Theatres (1976):
Detroit could control time, place
and manner of adult businesses
– Schad v. Mt. Ephraim (1981): Mt.
Ephraim tried to zone all adult
businesses out of city limits; Court said no: could
ban ALL entertainment, not just adult ones
– Renton v. Playtime Theatres (1986): Court said OK
to heavily zone adult businesses
Nudity and the 1A
• Barnes v. Glen Theatre (1991): Court said IN
statute requiring strip-tease dancers to wear
pasties and G-strings was constitutional—
interest in protecting morals and public order
• Erie v. Pap’s A.M. (2000): divided
Court upheld Erie, PA ordinance
requiring nude dancers to wear
G-strings and pasties
– Nude dancing has minimal 1A prot.
– Court again affirmed right to ban
public nudity to combat “secondary
effects” (“violence, sexual harassment, public
intoxication, prostitution, the spread of sexually
transmitted diseases and other deleterious effects”)
Other forms of censorship
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•
•
•
Postal censorship
Military censorship
Film censorship
Government grant censorship
Postal censorship
• Pandering Advertisement Act, 1968
– Allows postal patrons to demand their names
be removed from objectionable mailing lists
• Rowan v. Post Office, 1971
– Allows postal patrons to demand their names
be removed even before the first objectionable
items arrive
Military censorship
• Military Honor and Decency Act of 1966
– Military is free to ban the sale or rental of
sexually oriented videos and publications in
their stores
Film censorship
• Mutual Film Corp. v. Industrial
Commission of Ohio, 1915
– Movies are not protected by the First
Amendment.
• Burstyn v. Wilson, 1952
– Films are a significant medium for
communication and protected by the First
Amendment
Government grant censorship
• NEA v. Finley, 1998
– Those who award government grants for the
arts can consider general standards of
decency and respect for the diverse beliefs and
values of the American people
Conclusion: General information
• Obscenity has no First Amendment
protection.
• Pornography has First Amendment
protection
• Indecency has lower standard of protection
for broadcast media.
Conclusion: Defining Obscenity
• For a work to be obscene, it must, taken as a
whole, appeal to the prurient interest of the
average person and be patently offensive
applying contemporary community standards.
– A work appeals to prurient interest if it is sexually
arousing to the average person
– Works are patently offensive if they are “hard-core”
pornography containing graphic, lewd displays of
genitals or sexual acts.
– To be obscene, materials also must lack serious
literary, artistic, political, or scientific value, as
determined by a reasonable person.
Conclusion: Possession of obscenity
• Adults may receive obscene materials in the
privacy of their homes
• Right to receive and possess obscenity is severely
curtailed by constitutional prohibitions on the
import, distribution and sale of obscenity.
• Child pornography may be barred.
• Obscene films may be prohibited in theaters even
if admission is limited to adults.
Conclusion: Indecency
• Broadcasters can be restricted to airing indecency
only during “safe harbor”—10 p.m. to 6 a.m.
• Dial-a-porn services can transmit indent materials
at any time of day if techniques, such as access
codes, are used
• Cable systems may transmit indecent materials at
any time of day on channels controlled by the cable
operator
• Communicators using the internet, like print
publishers, have a First Amendment right to
disseminate indecency