First Amendment Limits: 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 First Amendment rights to free speech and a free press begin as a prohibition on Congress passing laws restricting these freedoms. 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.

In other words, First Amendment rights are protected from government restriction. This generally applies to government regulation of private expression. It doesn’t constrain government speech. Additionally, speech restrictions imposed by private entities are generally not subject to First Amendment limitations.

The Court has also determined that speech protected by the First Amendment includes performances, the written word, and other forms of expressive conduct. For example, donning an armband to protest a war and refusing to salute the American flag are both forms of speech or expression protected by the First Amendment.

Similarly, the right to a free press isn’t just a protection for media outlets. Essentially, it safeguards the right of all individuals to share and receive information, news, and ideas. The right to a free press means that, in general, the government cannot stop the press from disseminating information.

Limits on the First Amendment

Indeed, First Amendment rights are not without limitations. The Supreme Court has established several circumstances in which government regulation of speech is consistent with the First Amendment.

It has also developed frameworks and legal standards for determining whether speech restrictions violate the First Amendment. Their application varies depending on the circumstances.

However, they generally weigh the state interest served by the restriction against the First Amendment rights burdened by it. Strict scrutiny is the most difficult standard to satisfy. It requires the restriction to serve a compelling state interest in the least restrictive manner available.

Unprotected Speech

The Court has established certain categories of speech that the First Amendment doesn’t protect. This means the government can restrict and penalize unprotected speech without violating the First Amendment.

Categories of unprotected speech established by the Supreme Court include:

• Defamation
• True threats
• Fighting words
• Obscenity
• Child pornography

Below, we discuss Supreme Court decisions dealing with the First Amendment and "obscenity."

The Supreme Court's Interpretation of Obscenity

In 1957, the Supreme Court determined that obscene material or expression wasn’t protected by the First Amendment. However, it’s struggled to arrive at a definition of obscenity.

The Court has determined that the First Amendment rights to free speech and a free press aren’t necessarily limited to expressing ideas. These rights also extend to entertainment, even sexually explicit entertainment. As the Court explained in Winters v. New York, the boundary between informing and entertaining “is too elusive for the protection of that basic right.”

In Stanley v. Georgia, the Court also clarified that the right to give and receive “information and ideas, regardless of their social worth . . . is fundamental to our free society.” Even sexually explicit material, which is “arguably devoid of any ideological content,” may be protected under the First Amendment.

So then, where is the line between sexually explicit material protected by the First Amendment and unprotected obscene matter? The body of case law establishing guidance for identifying obscenity and evaluating government restrictions on sexually explicit material helps us answer that question.

Butler v. Michigan

In 1957, the Supreme Court delivered its first opinion in the field of obscenity. In Butler v. Michigan, the Court unanimously invalidated a state statute that criminalized the general distribution of materials inappropriate for minors.

It explained that limiting adult access to only material suitable for minors unconstitutionally burdens adults' First Amendment rights. Thus, the Court held that restrictions on material that’s inappropriate for children but not obscene for adults will only be upheld if they’re narrowly tailored.

Roth v. United States

That same year, the Court first held in Roth v. United States that the First Amendment didn’t protect obscenity. It recognized that the First Amendment language doesn’t place conditions on speech and press rights. However, the Court didn’t construe that to mean everything spoken or conveyed is protected.

The Roth Court explained that the First Amendment protects expression with even the smallest amount of social importance. Obscenity, however, is completely without social importance.

Historically, all or nearly all the states that ratified the First Amendment had laws on their books criminalizing profanity or blasphemy. Thus, the Court concluded it wasn’t intended to fall within protected speech and the press categories.

The Roth Court further clarified that sex and obscenity aren’t the same. For example, depictions of sex within scientific, artistic, and literary material wouldn’t alone prevent First Amendment protection for that material. So, it’s critical that the test for identifying obscenity still protects non-obscene material with sexual content.

The Court explained that obscene material treats sex in a way that appeals to prurient interest. It described prurient interest as “a shameful or morbid interest in nudity, sex, or excretion.” It defined material appealing to it as that which tends “to excite lustful thoughts.”

The Roth Court proceeded to establish a standard for identifying unprotected obscenity:

• Whether the average person
• Applying contemporary community standards
• To the material taken as a whole
• Would find its dominant theme appeals to prurient interest

After Roth, the Court addressed several obscenity cases using this standard.

Manual Enterprises v. Day

In Manual Enterprises v. Day, the Court reviewed a post office ban on magazines containing homoerotic content. The ban categorized these materials as obscene and thus un-mailable.

The Court couldn’t reach a majority opinion. However, it struck down the ban, explaining that the material wasn’t obscene and was, therefore, protected by the First Amendment.

Justices Harlan and Stewart explained in a plurality opinion that material is considered obscene if it:

• Is patently offensive
• Appeals to a prurient interest

They reasoned that the nude images of men featured in the magazines couldn’t justly be considered more offensive than the images of nude women tolerated by society.

Jacobellis v. Ohio

Likewise, the Court couldn’t reach a majority opinion in Jacobellis v. Ohio. Even so, the Jacobellis Court reversed a movie theater manager’s conviction for possessing and showing a supposedly obscene film. The film included one sexually explicit scene.

The Court utilized the Roth test, concluding that the film was not legally obscene when considered in its entirety. It also held that obscenity should be based on a national community standard rather than a local one.

Justice Potter Stewart’s concurrence in Jacobellis is often quoted for his reference to hard-core pornography: “I know it when I see it.”

Ginzburg v. United States

In 1966, the Court addressed Ginzburg v. United States. Ginzburg was convicted of violating a federal obscenity law when he mailed advertising materials with instructions on how to obtain obscene publications. The Court applied Roth and didn’t find the advertisements themselves to be clearly obscene.

However, it established that in cases dealing with borderline obscene materials, determinations can be based on context provided by the defendant’s conduct, as well as content.

Here, Ginzburg pandered the publications to appeal to prurient interests. As a result, the Court upheld the conviction, finding that the otherwise close materials could have been deemed obscene.

Memoirs v. Attorney General of Massachusetts

The Court restated its obscenity test in 1966 in Memoirs v. Attorney General of Massachusetts, adding value as a consideration. For material to be deemed unprotected obscenity, the Memoirs Court held, the work as a whole must:

• Have a dominant theme that appeals to prurient interest
• Be patently offensive because it oversteps current community standards
• Be completely devoid of redeeming social value

Ginsberg v. New York

In 1968, the Court upheld a law banning the sale of materials with sexual content and nudity to minors in Ginsberg v. New York. The Court explained that the state had an interest in protecting the well-being of minors and restricting their access to such materials.

As a result, the Court held that narrowly tailored restrictions on the sale or distribution of material to children are permitted even if the material isn’t obscene for adults.

Stanley v. Georgia

The following year, the Court heard Stanley v. Georgia. The Stanley decision recognized a limited protected interest in the possession of obscene materials, except child pornography, within the privacy of one’s home.

It explained that a law can’t criminalize mere private possession of obscene material. The First Amendment protects our right to receive ideas and information whether they’re deemed to have social value or not.

It further explained that this right has additional significance in the context of criminalizing the possession of something in the privacy of one’s home. The Stanley Court reasoned that protection of one’s mind from the impact of pornography isn’t a legitimate state interest.

Alexander v. Virginia and Paris Adult Theatre I v. Slaton

In 1973, the Court heard the Alexander v. Virginia and Paris Adult Theatre I v. Slaton cases. In both, the Court addressed whether the First Amendment protects sexually oriented material if there’s reasonable protection preventing exposure to minors and public notice as to the nature of the material.

In Alexander, the display of sexually oriented picture magazines was at issue, and the Court sent the matter back to state court. In Paris, it was a film.

By a narrow 5-4 majority, the Paris Court stuck to the Roth standard. It held the film to be obscene. Thus, it wasn’t protected even if it was limited to consenting adults.

Chief Justice Warren Burger penned the opinion and explained that government interests are broader than just protecting minors and unconsenting adults from exposure to pornography. They include enhancing and protecting quality of life, public safety, and the community environment as a whole. To that end, the state may restrict obscene materials in the marketplace.

Justice Douglas dissented. Justice Brennan also penned a dissent, joined by Justices Marshall and Stewart. Brennan’s dissent contended the Court still lacked a proper test for distinguishing obscene material from non-obscene material.

He further explained that he could no longer support the suppression of material deemed to be obscene for consenting adults. He cautioned that government restrictions on obscene material should be limited to protecting unconsenting adults and children from exposure.

Miller v. California

That same year, the Court set forth the current standard for unprotected obscenity in Miller v. California. In doing so, the Court cautioned that laws restricting pornography are regulating a type of expression.

As a result, restrictions must be narrowly tailored to address only obscene materials. The Court established the Miller test for obscenity. It turns on whether the average person finds that, as a whole, the material:

• Appeals to prurient interests according to contemporary adult community standards
• Depicts or describes sex or sexual activity in a patently offensive manner according to contemporary adult community standards
• Lacks serious artistic, political, literary, or scientific value.

The Miller Court specifically rejected the requirement that a work has to be completely devoid of redeeming social value to be regulated.

In its Kaplan v. California decision that same year, the Court clarified that books with only descriptive content and no visuals can be considered unprotected obscene material.

Three years later, in Smith v. United States, the Court held that a jury doesn’t have to apply the community standard definitions set forth by state law. The jury may identify community standards for evaluating obscenity.

McKinney v. Alabama

The Court also heard McKinney v. Alabama in 1976. The McKinney Court reviewed a state statute alleged to violate a bookseller’s First Amendment rights. The bookseller was charged under the statute for selling obscene materials.

McKinney contended the magazines at issue weren’t obscene. The lower court denied the bookseller’s request to have the jury make that determination. Instead, it held that the determination had already been made in an unrelated prior civil case.

The Supreme Court held that the statute, as applied, violated McKinney’s constitutional rights. The Court also noted that the statute’s procedures for making obscenity determinations didn’t encompass the required sensitivity to free expression.

American Booksellers Association, Inc. v. Hudnut

In American Booksellers Association, Inc. v. Hudnut, the 7^th U.S. Circuit Court of Appeals evaluated the constitutionality of an Indianapolis ordinance. The ordinance banned sexual depictions of women in certain roles and positions.

Applying the Miller test, the appellate court determined the law violated the First Amendment. It didn’t satisfy the test criteria.

Specifically, the ordinance didn’t require that banned material appeal to the prurient interest in sex or that it be patently offensive to community standards. Likewise, it didn’t require an evaluation of the relevant works’ scientific, artistic, or literary value or an evaluation of the works as a whole.

In its opinion, the court distinguished traditionally obscene material from pornography. The First Amendment does not protect obscene material. The determination of whether pornography is considered obscene depends on the Miller test.

New York v. Ferber

In the landmark 1982 case of New York v. Ferber, the Court first held that child pornography isn’t protected by the First Amendment. Regardless of whether or not it’s obscene, it’s unprotected.

In this case, the Court reviewed a state law that banned people from knowingly promoting children’s sexual activity and performances by distributing material depicting just that. The Court unanimously held that the law didn’t violate the First Amendment and upheld it.

It also upheld the conviction of bookstore owner Ferber, who sold films of children performing sexual acts to undercover cops.

Pope v. Illinois

In 1987, the Court addressed Pope v. Illinois. In Pope, the Court clarified the value prong in the Miller test. Specifically, it held that a determination as to whether the material has “serious literary, artistic, political, or scientific value” should be made using the reasonable-person standard and not community standards.

Fort Wayne Books, Inc. v. Indiana

In Fort Wayne Books, Inc. v. Indiana, the Court held that the state’s use of RICO laws to restrict the distribution of sexually explicit material violated the First Amendment freedoms of speech and the press. It also cautioned that the pre-trial seizure of materials allowed by the RICO laws functioned as an unconstitutional prior restraint on speech.

Barnes v. Glen Theatre, Inc.

In Barnes v. Glen Theatre, Inc., the Court reviewed a state statute prohibiting public nudity. When the state tried to enforce the statute against two adult entertainment venues, they claimed the law violated their First Amendment rights.

The statute banned public nudity across the board, not just in the context of adult entertainment. Accordingly, the Court determined the law functioned only as an incidental restriction on the venues’ speech.

As such, it needed only to be narrowly tailored to serve a substantial state interest. The Court found it did and upheld the law. But there was no majority opinion.

Justice White penned a dissent joined by Justices Stevens, Marshall, and Blackmun. In it, the Justices contended that the actual purpose of the statutory ban was to curb what the state regarded as harmful messaging conveyed by nude dancing. And they explained that the First Amendment protects against such content-based restrictions.

Reno v. American Civil Liberties Union (ACLU)

In the landmark 1997 Reno v. American Civil Liberties Union (ACLU) matter, the Court struck down provisions of the federal Communications Decency Act that prohibited transmission of messages containing indecent or obscene content.

It also banned transmissions describing or depicting “sexual or excretory activities or organs” in a way that community standards considered offensive. The Court deemed the provisions to be unnecessarily broad content-based restrictions on speech. It based its conclusion on the absence of a statutory definition for “indecent” and no limitation on the Act’s applicability for particular times or people.

We understand the First Amendment doesn’t protect obscene materials. Beyond this, the Supreme Court’s decisions reveal limited clarity with respect to obscenity. The Justices have also had difficulty defining obscenity and agreeing on how much the state can regulate it. The Court decisions’ multiple opinions provide us with some insight into key considerations that will undoubtedly play a role in shaping future high-court holdings.