By David L. Hudson Jr., First Amendment Center
Updated July 2009
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:
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.”
After the Supreme Court’s initial ruling, a federal district court granted a preliminary injunction preventing enforcement of the law pending a full trial. The 3rd Circuit affirmed, as did the Supreme Court in Ashcroft v. ACLU II,(2004).
“The Government has failed, at this point, to rebut the plaintiffs’ contention that there are plausible less restrictive alternatives to the statute,” Justice Anthony Kennedy wrote for the Court. “Substantial practical considerations, furthermore, argue in favor of upholding the injunction and allowing the case to proceed to trial.”
The case returned to district court for a full trial in fall 2006. In March 2007, the district judge released his opinion striking down COPA. “Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection,” wrote Senior U.S. District Judge Lowell Reed Jr. in ACLU v. Gonzalez.
In July 2008, a three-judge panel of the 3rd Circuit invalidated COPA in ACLU v. Mukasey, finding that it did not pass strict scrutiny because filtering presented a less speech-restrictive alternative. The Supreme Court refused to review this decision in January 2009.
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.
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 by the breadth of the language in 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 CPPA “proscribes a significant universe of speech that is neither obscene under Miller nor child pornography under Ferber.”
Congress responded to the Court’s decision in Free Speech Coalition by passing the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, better known as the PROTECT Act. The purpose of the law was to “restore the government’s ability to prosecute child pornography offenses successfully.” Prosecutors and legislators warned about the ability of defendants in child-porn cases to raise the “virtual child porn defense,” arguing that the images in question did not contain pictures of actual minors.
A February 2003 Senate report on the PROTECT Act said prosecution of child pornography became more difficult for prosecutors because of the Free Speech Coalition ruling. “Many prosecutions, in fact, were dismissed,” the report stated. “And even the prosecutions that remain have been significantly and adversely affected by the decision because prosecutors need to devote significantly more resources to each child pornography case than ever before.”
The PROTECT Act, which was signed into law in April 2003, amended child- pornography laws in several ways. First, it created a new definition of child pornography to include pornographic pictures of children that are “virtually indistinguishable” from actual children. It also requires defendants to prove that the images they possess or distribute were not made with and do not depict actual children.
The PROTECT Act also created a new pandering offense by prohibiting offers to sell, trade or buy material purported to depict actual or obscene child pornography. The Supreme Court rejected a First Amendment challenge to this pandering provision from constitutional challenge in U.S. v. Williams (2008).
“Offers to engage in illegal transactions are categorically excluded from First Amendment protection,” the Court wrote. “Offers to deal in illegal products or otherwise engage in illegal activity do not acquire First Amendment protection when the offeror is mistaken about the factual predicate of his offer.” (See also“Virtual child pornography.”)
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. Pacificahas been largely confined to the broadcast medium.
The Supreme Court’s ruling in Pacifica has been criticized. Recent broadcast indecency cases involving the brief display of Janet Jackson’s breast at the Super Bowl and the use of the F-word by Sonny Bono and Nicole Richie at the Billboard Music awards have led to constitutional challenges, including arguments that FCC v. Pacifica should be overturned. However, in Fox Television v. FCC (2009), the Supreme Court declined to address the underlying First Amendment arguments and instead decided that the FCC did not act arbitrarily under the Administrative Procedure Act when it tightened its policy on indecency enforcement for the use of fleeting expletives.
Justice Clarence Thomas in a concurring opinion in the Fox case criticized the Court’s differential treatment of different media in First Amendment cases. He concluded that he was “open to reconsideration” of Pacifica.
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.