“I know it when I see it” – This famous phrase, by former Supreme Court Justice Potter Stewart,1 nicely summarizes the way that American law defines criminally punishable “obscenity.” Yet the First Amendment to the Constitution states unequivocally that “Congress shall make no law … abridging the freedom of speech.”
So where did the exception to the First Amendment for “obscenity” originate? What other ways, outside the penalties of obscenity law, have government officials found to control erotic speech? And why do some of them continue to do so, in the face of ever more sexual explicitness all around us?
This fact sheet summarizes the history and current status of restrictions on sexual expression in America.
History and Background of Obscenity Law
Other Controls on Sexual Expression
Zoning, Pasties, and G-strings
Public Spaces and Public Funds
Schools, Universities, and Libraries
“Indecency,” “Harmful to Minors” Laws, and Child Pornography
The Internet
The Politics of Sex and Censorship
Virtually since the dawn of civilization, governments and dominant religions have suppressed expression that they considered threatening – that is, subversive or “blasphemous” speech. Sexual expression – bawdy tales, songs, jokes, pictures, and sex information – were not generally objects of institutionalized concern.
Historian Philippe Ariès notes a change in Europe around the end of the 16th century, when “certain pedagogues … refused to allow children to be given indecent books any longer.”2 By the middle of the 18th century, this notion of childhood sexual innocence led to anti-masturbation hysteria in Europe and America, and fueled early attempts to censor sexually arousing art and literature.
It was not until the 19th century, however, that this concern with possible corruption of the young – along with urbanization, increased literacy, and anti-vice movements – fused to create the political will for widespread suppression of sexual speech.3
The first federal obscenity law in the U.S., passed in 1842, authorized the Customs Service to confiscate “obscene or immoral” pictures. (It did not define these terms.) Earlier in the century, a few states prosecuted books or illustrations with sexual content, also without any precise legal definition of what constituted “obscene or immoral” expression.4
In 1868, in the case of Regina v. Hicklin, the English courts created a definition for criminally punishable obscenity. The Hicklin standard, which American courts soon adopted, turned on whether “the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”5
In America, the leading enforcer of this “deprave and corrupt” standard was Anthony Comstock, a grocery clerk-turned social activist who persuaded Congress in 1873 to expand the federal obscenity law. The new “Comstock Law” barred sending through the mails not only “any obscene, lewd, or lascivious book, pamphlet, picture, print, or other publication of vulgar and indecent character,” but “any article or thing designed or intended for the prevention of contraception or procuring of abortion.”6
Deputized as a special agent of the U.S. Post Office, Comstock, during his 40-year tenure as head of the New York Society for the Suppression of Vice, seized and destroyed thousands of books, magazines, illustrations, and contraceptive advertisements and devices. Arrests and prosecutions only occasionally led to appellate court decisions, and when they did, the courts generally followed the Hicklin definition of obscenity.7
Some judges questioned Hicklin‘s underlying assumption: that the law’s censorship standard should turn on what society deems inappropriate for “those whose minds are open to … immoral influences” – meaning primarily adolescents and children. New York’s Judge Learned Hand, for example, wrote in a 1913 case that American authors, publishers, and readers should not have to “reduce our treatment of sex to the standards of a child’s library in the supposed interest of a salacious few.”8
In the 1930s, some courts repudiated the Hicklin standard. Two major cases involved a sex education pamphlet called The Sex Side of Life, written by birth control activist Mary Ware Dennett, and James Joyce’s novel Ulysses, the subject of an obscenity case after federal officers refused to allow it through U.S. Customs.
Dennett’s obscenity conviction was reversed by the U.S. Court of Appeals for the Second Circuit in 1930. The court said that “any article dealing with the sex side of life” is “capable in some circumstances of arousing lust,” but this does not mean that youngsters should be left “to grope about in mystery and morbid curiosity” because of obscenity law. Instead, the legal standard should be whether the information is conveyed in “clearly indecent” terms.9
In the Ulysses decision three years later, federal judge John Woolsey cleared Joyce’s novel of obscenity charges because, Woolsey said, the work was more “emetic” than “aphrodisiac,” and therefore unlikely to “stir the sex impulses or to lead to sexually impure or lustful thoughts” in the average person. The court of appeals affirmed, repudiating the Hicklin “deprave and corrupt” standard and replacing it with an obscenity definition that focused on whether, “taken as a whole,” the “dominant effect” of a work on the average person is libidinous.10
The Supreme Court finally confronted the obscenity issue in 1957. In Roth v. United States, Justice William Brennan wrote for the Court that even though sex is “a great and mysterious motive force in human life,” and “a subject of absorbing interest to mankind through the ages,” sexual materials that have a predominantly “prurient” appeal to the average adult, and that utterly lack “redeeming social importance,” are not protected by the First Amendment.11
American courts for the next 16 years struggled to apply Brennan’s “utterly without redeeming social importance” formula to sexual art and literature. Henry Miller’s Tropic of Cancer and D.H. Lawrence’s unexpurgated Lady Chatterley’s Lover were among the works freed from official censorship after the Roth decision.12
Some observers around this time thought the end of obscenity law was at hand, but in 1973, the Supreme Court announced a new obscenity test that would allow local communities to set their own censorship standards and that would relieve prosecutors of the burden of proving that a work charged as obscene is “utterly without redeeming social importance.” Miller v. California defined constitutionally unprotected obscenity with a three-part test:
• Does the material depict or describe specific sexual or excretory activities or organs in a “patently offensive” manner?
• Would the average person, applying “contemporary community standards,” find that the material, taken as a whole, appeals predominantly to a “prurient” interest in sexual or excretory matters?
• Does the material, taken as a whole, lack “serious literary, artistic, political, or scientific value”?13
By this time Justice Brennan, author of the 1957 Roth decision, had come to the conclusion that judicial efforts to articulate a definition of “obscenity” are doomed to failure. “Although we have assumed that obscenity does exist, and that we ‘know it when [we] see it,'” Brennan wrote,
“we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech.”14
But Brennan’s was the dissenting view, and Miller‘s ambiguity-laden three-part definition remains the test for legally punishable obscenity today.
Other Controls on Sexual Expression
The Supreme Court’s use of “contemporary community standards” in Miller v. California to define criminally punishable obscenity means that the law evolves along with social mores. Thus, in the decades since Miller, pornography has become a highly profitable industry in the U.S.; sexually explicit material is produced and distributed outside the commercial pornography industry by amateurs and publishers of personal Web sites; sex talk is pervasive on nonprofit listserves; and obscenity prosecutions have been sporadic and unpredictable.
This does not mean that pornographers have nothing to fear from obscenity law today; but, as a practical matter, legal controls on sexual expression now tend to take more indirect, primarily non-criminal forms.
Zoning, Pasties, and G-Strings
Zoning of “adult” entertainment, and bans on nude dancing, are two examples of indirect government control. As the relaxation in “contemporary community standards” made obscenity convictions harder to obtain, local officials began to use restrictive zoning to limit adult video stores and nude dancing establishments that they could not ban entirely.
Singling out one form of expression for adverse treatment, however, is a form of “content discrimination” that is usually forbidden by the First Amendment. In the 1986 case ofRenton v. Playtime Theatres, the Supreme Court finessed this difficulty by describing adult zoning as “content neutral” because the regulations are not directed at expression, but at the “adverse secondary effects” associated with sex businesses, such as seedy atmosphere, low property values, and crime.15
This “secondary effects” doctrine, although a legal fiction (adult business are obviously singled out on the basis of their content), means that municipalities do not have to meet a very high burden of proof when they discriminate against sexual expression. If their regulations were considered “content-based,” then they would have to survive First Amendment “strict scrutiny.”
A similar set of legal rules has arisen to control erotic dancing. Much of the legal debate has centered on whether municipalities and states can, consistent with the First Amendment, ban totally nude entertainment by requiring that dancers wear “pasties” and G-strings.
As early as the 1970s, the Supreme Court recognized that nude dancing is a form of expression that has First Amendment protection.16 But in the 1991 case of Barnes v. Glen Theatre, five justices ruled that a state law requiring pasties and G-strings on erotic dancers is constitutional. Justice William Rehnquist’s “plurality” opinion (stating the Court’s judgment but without a majority of justices agreeing to its reasoning) asserted that nude dancing is “only marginally” protected by the First Amendment.17
Justice David Souter wrote a concurring opinion in Barnes, pointing to the presumed “adverse secondary effects” of nude entertainment as sufficient justification for states to require minimal coverings on dancers. But as another justice, John Paul Stevens, noted in a later case: “To believe that the mandatory addition of pasties and a G-string will have any kind of noticeable impact on secondary effects requires nothing short of a titanic surrender to the implausible.”18
As these conflicting opinions suggest, the Supreme Court has not been able to agree on a legal rationale for allowing cities and states to require pasties and G-strings. Nineteen years after Barnes, four justices used the secondary effects rationale to uphold a minimal-coverings requirement in the city of Erie, Pennsylvania.19
Justice Antonin Scalia concurred in this Pennsylvania case, arguing that there is no First Amendment problem with a general anti-nudity law, and that society’s “traditional judgment” that nude dancing “immoral” is sufficient justification for banning it.20
The dissenting justices in both of the Supreme Court’s erotic dancing cases pointed out that requiring performers to wear pasties and G-strings in upscale theater presentations – such as Equus, Salome, or Hair – would be an obvious affront to artistic freedom, and that applying the requirement to less classy venues is thus hypocritical and discriminatory.21
Public Spaces and Public Funds
Other non-criminal restrictions on sexual expression – measures that do not ban it but do limit its availability – involve public exhibition spaces and public funds. In 1989, for example, the National Endowment for the Arts (the NEA) came under attack for funding “pornography” (in that instance, the photographs of Robert Mapplethorpe). The question of whether “the taxpayers’ money” should be used to support sexually explicit expression continued to rage throughout the 1990s.
In 1990, Congress passed a law that requires the NEA to consider “general standards of decency and respect for the diverse beliefs and values of the American public” when awarding grants. Four sexually provocative performance artists, along with the National Association of Artists’ Organizations, challenged the law.
In a 1998 decision, National Endowment for the Arts v. Karen Finley, the Supreme Court upheld the “general standards of decency” law. Justice Sandra Day O’Connor, writiing for the Court, interpreted the law as only advisory, not mandatory. She explained further that “any content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding,” and that Congress may “selectively fund a program to encourage certain activities it believes to be in the public interest.”22
But the Supreme Court in Finley also reiterated a rule it had articulated in earlier cases involving conditions on government funding – that “even in the provision of subsidies, the Government may not ‘aim at the suppression of dangerous ideas.'” Thus, “if the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, … we would confront a different case.”23
A similar rule applies to government-owned exhibition spaces. Under the Supreme Court’s “public forum” doctrine, citizens are entitled to equal access to government property for expressive activity, if the property has been customarily used that way – for example, art displays in the lobbies of public buildings, or theatrical productions at municipal auditoriums.
Yet artists who address sexuality or even simple nudity in their work are often denied public display space. The problem frequently arises after a town official chooses an art exhibit or delegates the job to a local curator, but then someone complains that one or more works in the show are offensive, “pornographic,” inappropriate for children, or a form of “sexual harassment.” The offending works are removed; official “no nudity” policies sometimes follow.24
When these decisions or policies are challenged in court, the result frequently turns on whether the judge finds that the venue is a “designated public forum.” If so, it usually follows that city officials violated the First Amendment by censoring the work. But sometimes the courts will find that no “designated public forum” is involved, so that, absent a showing of “viewpoint discrimination,” government officials have discretion to exclude the work.25
Schools, Universities, and Libraries
Schools, universities, and libraries also receive government funds – indeed, public schools and libraries are government agencies. Here, too, political issues surrounding public support for sexual art and information sometimes result in marginalizing constitutionally protected expression.
One example is the federal “Children’s Internet Protection Act,” or “CIPA,” which mandates that all schools and libraries receiving e-rate discounts or federal aid for Internet connections install a “technology protection measure” (that is, a filter) on all computers, whether used by minors or adults.26
Although CIPA requires only that the filters block “visual depictions” that are “obscene,” “child pornography,” or “harmful to minors,” no filter can make these legal distinctions. On the contrary, as a three-judge court found, leading filtering products erroneously block tens of thousands of non-pornographic Web pages, even at their narrowest, “adult” or “sexually explicit” settings.27
The three-judge court gave numerous examples of this chronic overblocking, from a Knights of Columbus site, misidentified by Cyber Patrol as “adult/sexually explicit” to a site on fly fishing, misidentified by the “Bess” filter as “pornography.”28
The Supreme Court nevertheless upheld the constitutionality of CIPA. Chief Justice William Rehnquist, writing for a plurality of four justices, reasoned that filtering the Internet is no different from librarians’ subjective book selection decisions, and that since discretionary choice is an element of both processes, neither libraries nor the Internet access they provide qualifies as a “public forum.”29
Rehnquist also said that because the government is providing funds for Internet access, it has discretion to determine the scope of the information allowed. To the extent that erroneous blocking of “completely innocuous” sites raises a constitutional problem, he added, “any such concerns are dispelled” by a provision in CIPA giving librarians authority to disable the filter upon request from an adult.30
Three dissenting justices in the CIPA case emphasized that the broad, often irrational censorship imposed by filters undermines the fundamental principle of libraries – free and open access to ideas. Given the uncertainty, delay, and disincentives inherent in the law’s discretionary disabling provision, they thought it a poor substitute for unfettered Internet access.31
Public schools are another government-funded arena where sexual expression is regulated. Although the Supreme Court has recognized that students do not “shed their constitutional rights to freedom of … expression at the schoolhouse gate,”32 – the case involved black armbands worn to protest the Vietnam War – when the issue involves sexual speech, the Court has given school administrators wide latitude to punish and censor.
An example is the case of Bethel School District v. Fraser. School officials punished Matthew Fraser for delivering a student government campaign speech filled with sexual innuendo. The Supreme Court rejected Fraser’s claim that the punishment violated the First Amendment. Writing for the Court, Chief Justice Warren Burger explained that “vulgar and lewd” expression undermines the public schools’ basic mission of teaching civility; moreover, he said, “by glorifying male sexuality and in its verbal content,” Fraser’s speech “was acutely insulting to teenage girl students.”33
Justice Stevens wrote in dissent that Matthew Fraser “was probably in a better position to determine whether an audience composed of 600 of his contemporaries would be offended by the use of a four-letter word – or a sexual metaphor – than is a group of judges who are at least two generations and 3,000 miles away from the scene of the crime.”34
“Indecency,” “Harmful to Minors” Laws, and Child Pornography
As the Fraser and “CIPA” cases illustrate, “harm to minors” remains, a half-century after the Supreme Court rejected the Hicklin standard, a powerful argument for regulating sexual speech. Another example is the censorship scheme that applies to radio and television broadcasting.
The Federal Communications Commission since its beginnings has asserted the power to keep not only obscene but “indecent” speech off the airwaves. In the 1978 case of FCC v. Pacifica Foundation, the Supreme Court agreed. The case involved comedian George Carlin’s famous “seven dirty words” monolog.35
The FCC definition of indecency that the Supreme Court approved in Pacifica – expression “that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs”36 – is almost identical to the “patent offensiveness” prong of the obscenity test. But it omits the other two requirements for obscenity: that the speech be “prurient” and lack “serious value.”
The Supreme Court’s Pacifica decision approving the FCC’s indecency standard turned largely on the perceived need to protect minors from coarse – even though not obscene – language such as Carlin’s. Justice Stevens wrote a plurality opinion justifying the FCC’s censorship of this constitutionally protected speech on the grounds that broadcasting is “uniquely pervasive” and “uniquely accessible to children, even those too young to read.”37
Stevens also said that the FCC was not banning indecent speech but merely channeling it to late-night hours when children are unlikely to be listening. Justice Lewis Powell wrote a concurrence asserting that vulgar speech “may have a deeper and more lasting negative effect on a child than on an adult.”38
For almost a decade after Pacifica, the FCC’s “indecency” enforcement was lax, as long as broadcasters avoided the “seven dirty words.” But in 1987, political pressures triggered a change: now, the FCC announced a “generic” test for patent offensiveness that would embrace sexual innuendo and double entendre along with taboo words.39
Of the three broadcasts that the Commission cited in announcing its new standard, two came from noncommercial radio: a KPFK-Pacifica reading from a play about homosexuality and AIDS, and a punk rock song played on a student radio station. The third was a Howard Stern show.40
The FCC continued to use its subjective “patent offensiveness” standard to censor non-mainstream, countercultural expression. An example was the song “Your Revolution,” by feminist rap artist Sarah Jones, which the agency condemned as indecent in 2001.41
In 2004, the FCC expanded its censorship power by announcing a new rule that even one “fleeting expletive” is presumptively indecent. The case involved the rock star Bono, who had exclaimed at a Golden Globe Awards event that “this is really fucking brilliant.” The agency reserved for itself the discretion to decide, based on its own notions of “artistic necessity,” whether a work that included vulgar words was “patently offensive” and therefore indecent.41a
Two years later, the FCC issued an “Omnibus Order” with many indecency findings; four of them involved only “fleeting expletives.” The broadcast industry filed suit to challenge the fleeting expletives rule; the FCC then reconsidered and reduced the number of indecency rulings to two (both involving expletives uttered at Billboard Award programs). The U.S. Court of Appeals for the Second Circuit struck down the new rule against fleeting expletives on the ground that it is “arbitrary and capricious,” in violation of the federal Administrative Procedure Act.41b
In April 2009, the Supreme Court reversed this ruling, but remanded the case to the Court of Appeals to decide whether the fleeting expletives rule violates the First Amendment. In July 2010, the Second Circuit ruled that the FCC’s indecency policy is unconstitutionally vague, thereby failing to put broadcasters on notice of what is banned, and chilling free expression. The Supreme Court accepted the government’s appeal, and heard oral argument in January 2012.41c
The FCC ‘s censorship power over “indecent” speech is an anomaly: it applies only to broadcasting. Government officials cannot censor expression they consider “patently offensive” on cable TV, in videos, in movies, on the Internet, or in print media.
The government’s presumed interest in protecting youth is also the basis for criminal laws that use a modified version of the obscenity standard. These are called “harmful to minors” laws.
After the Supreme Court made clear in 1957 that the obscenity standard for adults could not, constitutionally, turn on what might be thought inappropriate for a child, states began to enforce separate “harmful to minors” laws. The legal standard under these criminal laws is whether the material in question is “patently offensive,” “prurient,” and lacking in value for minors.
In the 1980s, a few courts recognized that the First Amendment rights of older minors could be compromised by laws criminalizing the distribution to them of books or films that their community thinks inappropriate for younger children. The courts accordingly interpreted such laws narrowly so that they would not apply to sexual material or erotic works with serious value for “a legitimate minority” of “older, normal adolescents.”42
A final category of censorship justified in the name of child protection is the law that has developed to suppress child pornography. Child pornography and “harmful to minors” laws are often confused, but their rationales – and the legal standards that govern them – are very different.
While “harmful to minors” laws regulate what expression youngsters are able to read, see, or listen to, child pornography laws are aimed at protecting them from physical harm. Hence, where a child has been used sexually in the making of a photograph or film, “patent offensiveness” “prurience,” and “serious value” are irrelevant. And conversely, paintings and drawings that do not use actual child models, and sexually graphic writings about youngsters, cannot constitutionally be covered by child pornography laws.43
In practice, deciding what qualifies as child pornography can often be as difficult as deciding what is “patently offensive” or “prurient” for purposes of the obscenity test. The problem is particularly acute where simple nudity is targeted. The legal standard turns on “lasciviousness,” which is often in the eye of the beholder. Law professor Amy Adler has argued that the law’s close scrutinizing of child nudes for elements of lasciviousness may have the perverse effect of further sexualizing children’s bodies and fomenting rather than squelching pedophilia.44
Child pornography laws tend to be harsh. While simple possession of obscenity (as opposed to public display or distribution) is constitutionally protected based on principles of personal freedom and privacy, simple possession of child pornography is often harshly punished. Prison terms under federal law can be up to 15 years.45 The rationale is that demand must be suppressed in order to discourage production. But harsh penalties for simple possession haved not suppressed pedophilia or child pornography.
The Internet
The rapid growth of the Internet has thrown many of the legal rules regulating sexual expression into question. Not only are state or local “community standards” meaningless in cyberspace, but laws banning “harmful to minors” expression, which assume the ability of retail clerks and movie ticket-sellers to distinguish minors from adults, can have the same effect online that obscenity law did in the days of Regina v. Hicklin: consigning adults to the standards thought acceptable for children.
Congress’s first attempt to suppress sexual Internet speech, the 1996 “Communications Decency Act” or “CDA,” was struck down by the Supreme Court precisely because it would have reduced “the adult population” to reading and viewing “only what is fit for children.”46
The CDA was also unconstitutional because it imposed criminal penalties based on the broad FCC “indecency” standard, thereby chilling large amounts of valuable speech. Although recognizing the rationale of child protection, the Supreme Court noted that a great deal of potentially “indecent” speech, from safer sex information to the Carlin monolog (which is available on many Web sites) would probably not be psychologically damaging to youth.47
Congress tried to correct this problem of “overbreadth” in the CDA with a second Internet censorship law, the “Child Online Protection Act” or “COPA.” COPA substituted for the CDA’s broad indecency ban the “harmful to minors” or “obscenity lite” standard for censoring cyberspace. The ACLU challenged COPA and in 2004, the Supreme Court ruled that it was probably unconstitutional, because Internet filters are likely to be a “less restrictive means” of protecting minors from sexually explicit content online.48
Much of the problem with COPA is the difficulty of distinguishing minors from adults online. The government’s proposed solution – a “good faith” defense to criminal prosecution for Internet speakers who install adult ID or credit card screening – is unacceptable to many Web publishers, nonprofit groups, and providers of sex education who wish to make their content freely available, who cannot afford adult ID or credit card technology, or who simply do not want to self-identify as pornographers.49
The Politics of Sex and Censorship
Government attempts to control sexual expression are often driven by politics. During the Administration of President Bill Clinton (and despite Clinton’s campaign promise of “aggressive enforcement of federal obscenity laws”50), prosecutions were not a high priority. Groups such as Family Friendly Libraries and the Family Research Council complained of lax enforcement.
The George W. Bush Administration stepped up obscenity prosecutions. In late 2003, the Justice Department, working with local U.S. Attorneys, reported 21 federal obscenity convictions.51 The Baptist News Service quoted Robert Peters, president of Morality in Media, as applauding this development. Peters said:
The Internet is now saturated with Web sites peddling hardcore pornography, resulting in untold numbers [of young and old] being lured into sexual addictions. The harm done by pornography shows up in failed marriages, rape, sexual abuse of children, sexually transmitted diseases and abortion.52
Similar statements blaming pornography for social ills have come from feminist anti-pornography activists such as law professor Catharine MacKinnon and writer Andrea Dworkin. In the 1980s, MacKinnon and Dworkin co-authored a model anti-pornography ordinance that went well beyond existing obscenity laws. (It was held unconstitutional by the federal courts.) By the late ’80s, these activists had allied themselves with religious and cultural conservatives to produce the report of the Meese Commission on Pornography.53
Sexuality scholars along with anti-censorship and “sex-positive” feminists contested the claims of MacKinnon/Dworkin supporters. But the rift weakened the women’s rights movement, and the focus on pornography diverted political energy from actual efforts to stop rape, domestic violence, and sex discrimination.54
There is no empirical proof of adverse effects from the age-old genre of pornography.55But certainly, both cultural conservatives and anti-pornography feminists believe that pornography has a powerful influence on social attitudes and behavior.
Although condemning pornography, the U.S. government has done little to encourage comprehensive sex education. To the contrary, it has adopted an “abstinence-only-until-marriage” philosophy that excludes importance information about birth control and safer sex, and that, among other propositions, inaccurately tells students that “sexually activity outside of the context of marriage is likely to have harmful psychological and physical effects.”56
The boundaries on what sexual expression is acceptable, for adults or minors, continue to shift. Sexuality and sex censorship remain hot political issues, as they have been since the days of Regina v. Hicklin.
*This article previously appeared on the Free Expression Policy Project, which existed from 2000-2017.
NOTES
1. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (concurring opinion of Justice Stewart).
2. Philippe Ariès, Centuries of Childhood (NY: Vintage, 1962), p. 103.
3. See Marjorie Heins, Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Youth (NY: Hill & Wang, 2001), pp. 18-26.
4. Id., p. 25.
5. Regina v. Hicklin, 3 Queens Bench 360, 362 (1868).
6. An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, c. 258, §2, 17 Stat. 598, 599 (1873) (carrying over some language from the 1865 Post Office Act, c. 89, §16, 13. Stat. 504, 507 (1865)). The federal obscenity law has been amended many times; it is now codified at 18 U.S. Code §1461.
7. E.g., United States v. Bennett, 24 F. Cas. 1093, 1101-04 (Cir. Ct. S.D.N.Y. 1879); see Not in Front of the Children, pp. 32-33.
8. United States v. Kennerley, 209 Fed. Rep. 119, 121 (S.D.N.Y. 1913).
9. United States v. Dennett, 39 F.2d 564, 568 (2d Cir. 1930)
10. United States v. One Book Called “Ulysses,” 5 F. Supp. 182, 183-85 (S.D.N.Y. 1933), affirmed, United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706-07 (2d Cir. 1934)
11. Roth v. United States, 354 U.S. 476, 483-87 (1957).
12. Grove Press v. Gerstein, 378 U.S. 577 (1964) (Tropic of Cancer); Grove Press v. Christenberry, 175 F. Supp. 488 (S.D.N.Y. 1959), affirmed, 275 F.2d 433 (2d Cir. 1960) (Lady Chatterley). See Edward de Grazia, Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius (NY: Random House, 1992).
13. Miller v. California, 413 U.S. 15, 24 (1973).
14. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 84 (1973) (dissenting opinion of Justice Brennan).
15. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49 (1986). In 2002, the Court revisited adult zoning and “secondary effects”; its decision in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), followed Renton but made the city’s burden of justification lighter.
16. Schad v. Mount Ephraim, 452 U.S. 61, 66 (1981).
17. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565 (1991) (plurality opinion).
18. City of Erie v. Pap’s A.M., 529 U.S. 277, 299, 300 (2000) (dissenting opinion of Justice Stevens).
19. City of Erie v. Pap’s A.M., 529 U.S. 277 (2000).
20. Id. at 310 (concurring opinion of Justice Scalia).
21. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 593 (1991) (dissenting opinion of Justice White); City of Erie v. Pap’s A.M., 529 U.S. at 327-30 (dissenting opinion of Justice Stevens).
22. National Endowment for the Arts v. Finley, 524 U.S. 569, 585 (1998).
23. Id. at 587-88.
24. A typical example comes from Tennessee, where the state arts commission announced in 2002 that no depictions of human nudity are permitted in its gallery space, after an artist who had been invited to exhibit there included some nude figures. “The TAC Gallery is not a designated public forum opened for exhibitions by all groups,” the Gallery said. Rather, it is “a limited public forum with restrictions on the selection of works exhibited.” See Christina Cho, Kim Commerato, & Marjorie Heins, Free Expression in Arts Funding: A Public Policy Report (NY: FEPP, 2003), pp. 38-39, http://www.fepproject.org/policyreports/artsfunding.pdf.
25. See, e.g., Hopper v. City of Pasco, 241 F.3d 1067 (9th Cir. 2001) (ruling that city officials had created a “public forum” at city hall for the display of art); Lebron v. National RR Passenger Corp., 69 F.3d 650, modified, 89 F.3d 39 (2d Cir. 1995) (rejecting public forum argument for the large display space in New York City’s Pennsylvania Station); Henderson v. City of Murfreesboro, 960 F. Supp. 1292 (M.D. Tenn. 1997) (holding that city hall exhibit space was a “designated public forum”); Claudio v United States, 836 F. Supp. 1219 (E.D.N.C. 1993), affirmed without opinion, 28 F.3d 1208 (4th Cir. 1994) (finding no public forum in federal building lobby).
26. Public Law 106-554, §1(a)(4),114 Stat. 2763, amending 20 U.S.C. §6801 (the Elementary & Secondary Education Act); 20 U.S.C. §9134(b) (the Museum & Library Services Act); and 47 U.S.C. §254(h) (the Universal Service Discount, or e-rate, provision of the Communications Act).
27. American Library Association v. United States, 201 F. Supp.2d 401, 431-48 (E.D. Pa. 2002), reversed, 123 S.Ct. 2297 (2003).
28. Id. On the flaws in Internet filters, see Electronic Privacy Information Center, Filters & Freedom 2.0 (Washington, DC: EPIC, 2001); Free Expression Policy Project, Internet Filters: A Public Policy Report (2006).
29. United States v. American Library Association, 123 S.Ct. 2297, 2304 (2003).
30. Id. at 2304-09.
31. Id. at 2317 (dissenting opinion of Justice Souter); id. at 2321-22 (dissenting opinion of Justice Stevens).
32. Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969).
33. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 681, 683 (1986)
34. Id. at 692 (dissenting opinion of Justice Stevens).
35. Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978). Carlin’s monolog was a commentary on taboos surrounding “seven dirty words” that, Carlin rightly predicted, could not be spoken on the public airwaves. For background on the Pacifica case and the origins of the indecency regime, see Not in Front of the Children, pp. 89-136.
36. Pacifica Foundation, 56 FCC 2d 94, 97-98 (1975).
37. Federal Communications Commission v. Pacifica Foundation, 438 U.S. at 749 (plurality opinion)
38. Id. at 757-58 (concurring opinion of Justice Powell). The decision was 5-4; Justice Brennan wrote in dissent: “surprising as it may be to some individual Members of this Court, some parents may actually find Mr. Carlin’s unabashed attitude towards the seven ‘dirty words” healthy, and deem it desirable to expose their children to the manner in which Mr. Carlin defuses the taboo surrounding the words.” Id. at 770 (dissenting opinion of Justice Brennan).
39. Public Notice, New Indecency Enforcement Standards To Be Applied to All Broadcast and Amateur Radio Licensees, 2 FCC Rcd 2726 (1987).
40. Pacifica Foundation, 2 FCC Rcd 2698 (1987); Regents of the University of California, 2 FCC Rcd 2703 (1987); Infinity Broadcasting, 2 FCC Rcd 2705 (1987).
41. In the Matter of the KBOO Foundation, File No. EB-00-IHD-0079, DA 01-1212 (May 14, 2001), http://www.fcc.gov/eb/Orders/2001/da011212.doc. In 2003 – nearly two years after its indecency ruling which barred Jones’s song from radio, and in the face of a lawsuit from Jones – the FCC reversed itself and ruled that the rap was not indecent. In the Matter of the KBOO Foundation, DA 03-469 (Feb. 20, 2003), http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-469A1.pdf.
41a. Golden Globe Awards, 19 FCC Rcd 4975 (2004).
41b. Fox Television v. FCC, 489 F.3d 444 (2d Cir. 2007).
41c. FCC v. Fox Television, No. 07-582 (S.Ct. April 28, 2009); Fox Television v. FCC, 2010 U.S. App. LEXIS 14293 (2d Cir. July 13, 2010).
42. E.g., Virginia v. American Booksellers Association, 236 Va. 168, 173-75 (1988); American Booksellers Association v. Webb, 919 F.2d 1493 (11th Cir. 1990). The Supreme Court decision approving a separate, “variable obscenity” standard for “harmful to minors” laws was Ginsberg v. New York, 390 U.S. 629 (1968).
43. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); New York v. Ferber, 458 U.S. 747 (1982).
44. Amy Adler, “The Perverse Law of Child Pornography,” 101 Columbia Law Review 209 (2001).
45. Stanley v. Georgia, 394 U.S. 557 (1969) (striking down state law criminalizing simple possession of obscenity); 18 U.S. Code §2252, §2252a (penalties for possession of child pornography).
46. Reno v. American Civil Liberties Union, 521 U.S. 844, 875 (1997). The quoted language comes from Butler v. Michigan, 352 U.S. 380, 383 (1957).
47. Reno v. American Civil Liberties Union, 521 U.S. at 874-79.
48. Ashcroft v. ACLU, 542 U.S. 656 (2004). A federal court issued a preliminary injunction against COPA in 1999, and an appeals court affirmed, ruling that COPA was likely invalid on the ground that its reliance on “community standards” to regulate cyberspace would permit the most puritanical communities, by choosing to prosecute, to set the censorship standard for the entire nation. ACLU v. Ashcroft, 217 F.3d 162 (3d Cir. 2000). But the Supreme Court reversed, and sent the case back for further consideration, Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002). The Court of Appeals again ruled COPA probably unconstitutional, in American Civil Liberties Union v. Ashcroft, 322 F.3d 240 (3d Cir. 2003), and this time, the Supreme Court affirmed, Ashcroft v. ACLU, 542 U.S. 656 (2004). In 2006 there was a full trial in the district court, which ruled COPA unconstitutional on the grounds that it was vague and overbroad, and that voluntary use of Internet filters was a “less restrictive” way of shielding minors than a criminal law. ACLU v. Gonzales, No. 98-5591 (E.D. Pa. March 22, 2007). The Court of Appeals affirmed, and in January 2009, the Supreme Court sounded the death knell for COPA when it declined further review.
49. See American Civil Liberties Union v. Ashcroft, 322 F.3d 240 (3d Cir. 2003), affirmed, Ashcroft v. ACLU, 542 U.S. 656 (2004).
50. Quoted in Janet LaRue & Karen Gounaud, “Few Obscenity Cases Prosecuted Even As More Kids Use the Web,” letter to The Sacramento Bee, Mar. 13, 1999, http://www.fflibraries.org/Speeches_Editorials_Papers/LaRueGounaudKnightRidderColumn3-3-99.htm.
51. Erin Curry, “Obscenity Prosecution Featured in Congressional Resolution,” Baptist Press News Service, Dec. 2003, http://www.crosswalk.com/news/religiontoday/1147544.html; see also Janet LaRue, “DOJ Releases List of ‘Obscenity Prosecutions During This Administration,'” Concerned Women for America, Dec. 18, 2003, http://www.cwfa.org/articles/5022/LEGAL/pornography/.
52. Quoted in Curry, supra n. 51.
53. American Booksellers Association v. Hudnut, 771 F.2d 323 (7th Cir. 1985), affirmed mem., 475 U.S. 1001 (1986); Attorney General’s Commission on Pornography, Final Report(Washington, DC: U.S. Department of Justice, 1986).
54. See, e.g., Catharine MacKinnon, Feminism Unmodified (Cambridge: Harvard U. Press, 1987); Andrea Dworkin, Pornography: Men Possessing Women (NY: Plume/Penguin, 1981); Nadine Strossen, Defending Pornography (NY: Scribner, 1995); Feminists for Free Expression Web site, http://www.ffeusa.org/; Nan Hunter & Sylvia Law, Brief Amici Curiae of Feminist Anti-Censorship Task Force in American Booksellers Association v. Hudnut, published in 21 Michigan Journal of Law Reform 69 (1987-88).
55. See the authorities cited in the brief filed by four sexuality scholars’ organizations in the COPA case: Brief Amici Curiae of the Society for the Scientific Study of Sexuality in Ashcroft v. American Civil Liberties Union, S.Ct. No. 00-1293 (Sept. 20, 2001).
56. Personal Responsibility and Work Opportunity Act of 1996, §912, 42 U.S. Code §710; see Not in Front of the Children, pp. 145-48.