Virtually every society has struggled with the question of what to do about representations of sexual activity. Such material is prevalent because it manifests the tensions that arise between desire and social norms. Artful treatments of sex enhance our understanding of these tensions. But because societies are ambivalent about sexual freedom and are concerned about the impact of degrading sexual depictions on the quality of sexuality, they attempt by law to distinguish proper from improper display, or to prohibit display altogether.
This struggle is particularly acute in a liberal democracy, in which the values of liberty and democracy often conflict. Liberal principles hold that all forms of expression should be protected by the First Amendment unless they cause direct, demonstrable harm to others. Although violent erotic materials have been shown in laboratory studies to make males more inclined to commit violence against women, such studies have not demonstrated direct, systematic harm. The liberal approach would limit regulation to protecting minors and the sensibilities of unconsenting adults. Democratic principles, however, endorse the right of majorities to restrain liberty in order to protect society from potential harm and to support communitarian norms of sexual virtue.
Though the Supreme Court has ratified the imposition of liberal principles in cases involving political or religious speech, it has allowed some measure of community control by holding that the First Amendment does not protect all forms of expression. Expression deemed to possess social value merits protection unless it causes substantial and demonstrable direct harm, whereas less valuable expression is “unprotected.” It may be prohibited if the government simply shows a good reason to be concerned about its potential impact. In the seminal 1942 case of Chaplinsky v. New Hampshire, the Court established the rationale that distinguishes protected and unprotected speech. Obscenity and lewdness, libel, and fighting words are not protected by the First Amendment because “such expressions are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” (p. 572).
Traditionally, American law has used the concept of “obscenity” to draw the line between prohibited and permitted sexual representations. Obscenity is not the same thing as “pornography.” Etymologically, obscenity refers to those things considered disgusting, foul, or morally unhealthy. Pornography is broader in meaning, pertaining to depictions of sexual lewdness or erotic behavior. Pornography may not be obscene.
Chaplinsky’s rationale for First Amendment protection expressed a traditional notion of moral virtue and a conventional theory of truth as a purely cognitive process. But ensuing decades challenged these assumptions, as moral consensus concerning sexuality gave way to the experimental 1960s and 1970s, and the understandings of depth psychology and emotivist aesthetics supplemented traditional notions of knowledge.
Until 1957, obscenity cases simply dealt with the statutory meaning of obscenity. The absence of constitutional challenge reflected the strength of the moral consensus against obscenity. But as pornographic representations and literature became more available after World War II, the Supreme Court was eventually confronted with a constitutional challenge to suppression of pornography. In *Roth v. United States (1957), Justice William *Brennan held that obscenity is unprotected because it is “utterly without redeeming social importance” (p. 484). Brennan confined obscenity to “material which deals with sex in a manner appealing to prurient interest.” He defined prurient interest as either “[h]aving a tendency to excite lustful thoughts” or as a “shameful and morbid interest in sex” (p. 487). He then promulgated the following test for obscenity: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest” (p. 489).
Roth’s test focused on prurience. Yet prurience was never adequately defined, and the rest of the test provided little guidance as to what is obscene.
In Jacobellis v. Ohio (1964), the Court recognized that it had to make its own independent evaluation of the nature of allegedly obscene material in each case. This compelled the Court to create a decidedly more liberal three‐part test in the 1966 Fanny Hill case, A Book Named “John Cleland's Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts. Justice Brennan declared that material is obscene if its dominant theme is prurient; it is “patently offensive because it affronts contemporary community standards”; and it is “utterly without redeeming social value” (pp. 419–420). Only the most explicit material could meet the Memoirs test, which shifted emphasis from prurience (Roth) to patent offensiveness and the presence or absence of even minimal social value. The minimal social value test, in effect, required the prosecution to prove a negative—always a difficult task. Subsequently, the Court began to overturn virtually every obscenity prosecution it encountered unless the material was sold to minors or advertised salaciously (e.g., Redrup v. New York, 1967). Concurrently, the availability of progressively explicit materials mushroomed as publishers pushed the new standard to its limits. Anti‐pornography activists reacted by turning pornography and the “permissive” Warren Court into major national issues.
In Stanley v. Georgia (1969), the Warren Court ruled that the constitutional right of privacy prohibited punishing someone for using illegal obscenity in the home. But the Burger Court refused to carry out the logical implications of Stanley, and restored power to communities to control sexual materials. In Miller v. California (1973), the Court promulgated a revised test. Material is obscene if its predominant theme is prurient according to the sensibilities of an average person of the community; it depicts sexual conduct in a patently offensive way; and taken as a whole, it “lacks serious literary, artistic, political, or scientific value” (p. 24).
Miller’s reformulation of the social value test made it less likely that otherwise obscene works would slip over the threshold of protection by the spurious inclusion of minimal social commentary. But in another respect, it simply reaffirmed Memoirs’ implicit emphasis on hard‐core pornography, because Chief Justice Warren Burger stated that only hard‐core depictions could be designated patently offensive. Burger presented some “plain examples” of such depictions, including “patently offensive representations or descriptions of ultimate sex acts,” and “lewd exhibition of the genitals” (p. 25). Nudity alone, or pictures of sexual behavior short of “ultimate acts,” is not obscene.
Miller’s test is still the linchpin of obscenity doctrine. Courts have become fairly adept at distinguishing hard‐core from non‐hard‐core pornography. Literary works that deal with sexuality are strongly protected, and magazines like Playboy and Penthouse are substantially secure from constitutional attack.
Problems persist, however. Although Miller has resulted in fairly objective adjudication, decisions at the margin are unavoidably subjective. Only a direct‐harm approach would alleviate this problem. But the Supreme Court has been unwilling to forsake completely nonliberal values in this area of expression. On the other side of the issue, some conservatives and feminists contend that Miller conceded too much to liberalism, crippling the community's ability to curb the spread of all but the most explicit forms of pornography. Obscenity law often delivers less than it modestly promises.
In reaction to these problems, some feminists in the early 1980s advocated making pornography a new exception to First Amendment freedoms (see Gender). They defined pornography broadly, as the sexually explicit subordination of women, and provided no provision for redeeming artistic or social value. Lower federal courts held this approach unconstitutional (American Booksellers Association v. Hudnut, 1984). But the Supreme Court has allowed some hedging of Miller’s quasi‐liberal approach in specific areas. It has allowed zoning control of non‐obscene pornography (City of Renton v. Playtime Theatres, Inc., 1986) and upheld the Federal Communications Commission's decision to limit (not ban) the availability of non‐obscene “indecent” expression in broadcasting (F.C.C. v. Pacifica Foundation, 1978). In addition, the Court ruled that states may ban knowing distribution of non‐obscene pornography made with minors as subjects (New York v. Ferber, 1982).
These measures have enhanced the power of democratic controls but (with the exception of child pornography in Ferber) have not expanded the domain of the prohibitable. In general, obscenity law maintains a balance between liberal and democratic values that favors liberalism. The Supreme Court could make application of the law easier by adopting a fully liberal standard that reconciled sexual expression with most other expression, but such a reconciliation would be tantamount to the abandonment of democratic control in this highly charged issue.
The rise of the Internet has raised a host of new issues as thousands of websites have made pornography available to minors. The Court has struck down a federal law prohibiting the knowing transmission to minors of indecent or patently offensive messages (*Reno v. ACLU, 1994) and a federal law that prohibited making images of actual adults or computer‐created images (“virtual pornography”) appear to be images of minors engaged in sexually explicit conduct (Ashcroft v. Free Speech Coalition, 2002). These laws were not sufficiently limited to protecting minors. But the Court upheld the federal Children's Internet Protection Act, which requires libraries receiving federal funds to use Internet filters to screen out pornography (United States v. *American Library Association, 2003).
See also Speech and the Press; Unprotected Speech.
Bibliography
- Donald A. Downs,
The New Politics of Pornography (1989). - Catherine MacKinnon, Pornography, Civil Rights, and Speech,
Harvard Civil Rights‐Civil Liberties Law Review 20 (1985): 1–70. - Richard S. Randall,
Freedom and Taboo: Pornography and the Politics of a Self Divided (1989)
— Donald A. Downs
