Words like “obscenity” and “pornography” are frequently used without reference to, or understanding of, their legal significance. But these terms have legal definitions and implications that are critical to understanding what kind of sexual content is protected by the First Amendment, and what is not.
Obscenity. The legal definition of obscenity was established by Supreme Court in the 1973 case, Miller v. California. Sexual expression that meets the legal definition of obscenity is not protected speech. To fall under this exception to the First Amendment, the following three criteria must be met: 1) the work, taken as a whole, appeals to a prurient interest in sex, as judged by contemporary community standards, 2) the work portrays sexual conduct, defined by law, in a patently offensive manner, and 3) the work lacks serious literary, artistic, political or scientific value. Under this definition, constitutional protections apply to most forms of sexual expression, at least where adults are concerned. Minors are another matter, as discussed below.
Pornography is not the same as obscenity. The term “pornography” has no legal significance. It may or may not qualify as obscenity, depending on whether it satisfies the 3 prongs of Miller v. California. In common parlance, pornography is erotic material or material that arouses sexual desire. In contrast with obscenity, pornography is fully protected under the First Amendment, as long as it does not satisfy the Miller standard. It may have some artistic, literary, historical or other social value, or the work taken as a whole does not appeal exclusively to a prurient interest in sex, if for example it is used in treating sexual dysfunction or in marital counseling. Sexually explicit content may fail the test that it be patently offensive under contemporary community standards, if for example a significant segment of the adult population views adult videos or other erotic content. Pornography is protected expression if it does not meet the Miller test, regardless of whether some members of the community find it patently offensive.
Harmful to minors. Sexual expression involving minors is more complicated. This is true whether they are viewers/reader of content, or the subjects of the content. Five years before Miller, the Court articulated a different standard for minors’ access to sexual material. In Ginsberg v. New York, the Court upheld a New York statute criminalizing distribution of material deemed “harmful to minors” (under 17), citing the state’s interest in protecting “the health, safety, welfare and morals of its community by barring the distribution to children of books recognized to be suitable for adults.”
The test for content that is “harmful to minors” is the same as the Miller test, but modified in a critical way by adding the conditional phrase “for minors” to each prong of the test. Thus, material may be barred for minors if it appeals to the “prurient, shameful or morbid” interest of minors, lacks serious social value for minors, and is “patently offensive” based on adult views of what is fit for minors. This “variable obscenity” standard has been faulted because it is inherently subjective and upholds speech restrictive laws without requiring the government to prove a compelling state interest or actual harm. It arguably applies equally to an emancipated 16 year old and a 4 year old child.
In a more recent case involving a federal law requiring adult cable operators to protect minors from exposure to “signal bleed,” or fleeting sexual images, the Court imposed a more onerous burden on the government. The Court struck down the law because the government had failed to prove both that such a sweeping law was necessary to achieve the goal of protecting minors, and also the extent of actual harm to minors.
Child Pornography. Ginsberg limited minors’ access to material with sexual content, but that is not the end of the story. In 1982, in New York v. Ferber, the Court addressed the question of restrictions on depictions of minors that are or could be considered sexual. The Court recognized that the law in questions could apply not only to real child pornography, but also to a National Geographic photographic essay on tribal rites, ancient Greek art, and textbooks showing the effects of child sexual abuse or genital mutilation. Nonetheless, citing the compelling need to protect actual children from possible exploitation by child pornographers, the Court upheld the law and the principle that the state can censor images depicting actual minors in sexual situations. The definition of child pornography was later expanded to include images of children, nude or clothed, with a “lascivious” focus on the genitals.
Left open was the question whether such material would be protected if it had literary, historical, scientific, or artistic value. That question remains unanswered, but since then the Court has demonstrated continued concern about possible exploitation of children used to create sexual materials, and upheld a law criminalizing an adult’s possession of child pornography in his own home.
Virtual Child Pornography. The Internet era introduced the question of whether “virtual” child pornography can also be banned, as is the case with pornography involving real children. In 2002, the Supreme Court held that “virtual” child pornography – sexual depictions that appear to, but do not, depict actual children – is protected by the First Amendment. The Court applied the reasoning in Ferber and held that, no matter how distasteful such material may be, there is no basis for suppressing non-obscene sexual images as no real child is exploited or harmed in their creation. The issue is of more than academic interest, in light of the implications for films like Lolita containing simulated sexual scenes involved characters drawn as minors, and the prosecution of individuals for possessing film versions of The Tin Drum which also contained simulated sexual scenes involving a fictional minor.
Broadcast Decency. The Federal Communications Commission restricts broadcasting of “indecent” material, which includes non-obscene content that “depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Its authority to do so was challenged and upheld in 1978, in FCC v. Pacifica Radio, involving George Carlin’s satiric take on “the seven dirty words.” Application of the decency standard, however, has been wildly unpredictable, changing with the political winds and leaving broadcasters and audiences guessing what counts and what doesn’t – a fleeting expletive or bare breast? Repeated efforts to persuade the Court to clarify the law in the area were disappointed in 2012, when the Court once again refused to address the First Amendment question and merely set aside a fine imposed on Fox Television for “fleeting expletives” because the FCC had failed to give the network notice of new standards. With the rise of the internet, cable and satellite providers, which are not subject to FCC regulations, the FCC’s regulation of broadcast decency seems increasingly archaic and irrational. In 2012 the Commission began an internal review of its broadcast decency policies including, but not limited to, its treatment of “fleeting expletives.”
NCAC Backgrounder:
Minors, Sex and the First Amendment
The Supreme Court has played a major role in perpetuating our cultural ambivalence about sexual expression, on the one hand by affirming that sexual expression is constitutionally protected – at least for adults – and on the other by sanctioning government censorship of otherwise lawful sexual expression in the name of “protecting” minors. The result hasn’t always been pretty.
› Can Congress protect minors from sexual “indecent” material online? In Reno v. ACLU (1997), the Court said “no.” Not only was the definition of “indecency” too vague, but the law would inevitably infringe on the free speech rights of adults. This was impermissible: “[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.”
› Can Congress impose special burdens on adult cable channels to protect minors from inadvertent exposure to “signal bleed” containing fleeting sexual images? The Court again said “no” in U.S. v. Playboy (2000): Cable subscribers who cared enough could request that such images be blocked. The case gave the Court an opportunity to wax poetic on the subject of free speech:
…The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.
› Can Congress require schools and libraries to install filters and blocking technology to protect minors from exposure to sexual content? The Court said “yes,” in U.S. v. American Library Association (2003). The justices were assured that adults’ rights to constitutionally-protected material would not be restricted, since adults could request that the library unblock a site or disable the filter. No similar concern was expressed about over-zealous blocking where minors are concerned, since “the interest in protecting young library users from material inappropriate for minors is legitimate, and even compelling.”
› Can federal officials fine TV and radio broadcasters for “indecent” programming? Since 1973, even as cable television and the Internet have increasingly offered a vast universe of explicit content, the Federal Communications Commission has claimed the authority to keep “indecent” content off radio and broadcast television. While the FCC’s definition of “indecency” has shifted with the political winds, the FCC has steadfastly defended its rules as necessary to protect minors, and the Supreme Court has failed to address what First Amendment limits may apply, if any, to FCC rules.
In the most recent chapter, the FCC fined several broadcasters for programs containing “fleeting expletives,” (read: “fuck,” as in “This is fucking great!”), and fleeting nudity. In FCC v. Fox Television (2012), the Court held that the FCC had not given the networks adequate notice of what would be considered indecent, but ducked the big question about whether a government agency should be able to fine a broadcaster for failing “to exercise ‘reasonable judgment, responsibility, and sensitivity to the public’s needs and tastes.’” That sounds like a job for an old-fashioned censor, not government officials.
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The law on sex and censorship is confounded by conflicting demands: the right of adults to sexual expression, a topic of enduring interest and importance, and the impulse to protect minors from sexual knowledge. The result is an inconsistent and confusing body of law, often at odds with itself.
Uncertainty over just how far the Constitution permits regulation of legal expression in the name of protecting minors has pernicious consequences in the unending stream of books and other materials challenged in schools and libraries because of sexual content, the frequent challenges to nudity in art, efforts to restrict discussion of LGBTQ issues and sexuality in public schools. Etc., etc.
Where minors and sex are concerned, we live in the United States of confusion.