Pornography, Legal Aspects of
PORNOGRAPHY, LEGAL ASPECTS OF
Sexually explicit expression has been subject to legal regulation in the United States since the earliest days of the republic. Until the last half of the twentieth century, legal sanctions imposed on sexually explicit expression were not thought to conflict with the free speech protections of the First Amendment. Beginning in the 1950s, however, the U.S. Supreme Court began recognizing that a large amount of speech containing sexually explicit content also had significant First Amendment value. The Supreme Court therefore began limiting the government's power to regulate or ban certain types of sexually explicit speech.
Under the Supreme Court's modern cases, what is popularly called "pornography" actually covers several different categories of speech. One category is "obscenity." Obscenity is defined very narrowly and is not protected by the First Amendment. The government may ban the distribution of obscene materials, but it may not criminalize the mere possession of obscene materials that do not include the depiction of children. Another category is "indecency." This term refers to sexually explicit expression that falls short of the narrow legal definition of obscenity. Indecent speech is constitutionally protected (and therefore may not be legally banned altogether), but it may be regulated in some manner to prevent both children and adults from coming into contact with it involuntarily.
The legal regulation of all forms of pornography is complicated by the growth of new communication media. The Supreme Court has traditionally been willing to permit greater legal regulation of all sexual expression in contexts such as radio and television. The Court has been less willing to apply similarly restrictive standards to cable television, and it is far less willing to uphold regulation of speech over the Internet. It remains to be seen whether the ease with which images and ideas can be transmitted over the Internet will eventually lead to a liberalization of free speech protection of pornographic materials in more traditional communications contexts.
The first reported case in the United States to involve the censorship of a pornographic drawing occurred in 1815. The first prosecution of a book on obscenity grounds occurred in 1821. The book that was deemed obscene in that case was John Cleland's novel Memoirs of a Woman of Pleasure, which is usually known by its alternative title, Fanny Hill. This book has been prosecuted repeatedly since its publication, and one prosecution made it all the way to the U.S. Supreme Court in 1965.
Despite the long history of regulating pornography in the United States, the legal doctrine related to prosecution with regard to sexually explicit material developed slowly. The early prosecutions related to sexually explicit texts and drawings were based largely on blasphemy and profanity statutes, which were not specifically addressed to sexually explicit expression. In addition, no First Amendment doctrine covered obscenity until well into the twentieth century. Prior to that time, most pornography prosecutions in the United States were guided by the standard set by the British House of Lords in the 1868 case Regina v. Hicklin. This case involved the prosecution of a sexually suggestive anti-Catholic tract. In one of the opinions for the court in Hicklin, Lord Cockburn asserted that expressive material was obscene if it tended to "deprave and corrupt those whose minds are open to such immoral influences."
The American legal system embraced the Hick-lin immorality standard quickly, and soon after the Civil War, the states and the federal government began enacting the first statutes specifically directed toward the regulation of obscene materials. Many of these early statutes were attributable to the efforts of a dry-goods clerk and moral crusader named Anthony Comstock. Comstock started militating against the dissemination of pornography in New York in the early 1870s and later joined with the Young Men's Christian Association (YMCA) to form the Committee for the Suppression of Vice. Comstock and the committee were instrumental in the enactment of a major federal anti-obscenity act in 1873, and the act soon became known informally as the Comstock Law. This law prohibited not only the distribution of obscene materials but also the distribution of materials related to contraception and abortion. Soon after the law's passage, Comstock was made a special agent of the U.S. Post Office Department, a post from which he would lead the anti-pornography efforts in the United States well into the twentieth century.
Although Comstock's personal influence waned in the years preceding his death in 1915, the zealous moralism that he embodied continued to define efforts to regulate pornography throughout the first half of the twentieth century. During this period, a range of now-classic literary works were subjected to obscenity prosecutions or other forms of legal regulation. These prominent cases involved the works of writers such as George Bernard Shaw, Theodore Dreiser, Erskine Caldwell, Edmund Wilson, and D. H. Lawrence. A 1933 obscenity case against James Joyce's novel Ulysses resulted in the first systematic attack on the Hicklin analysis by an American court. The case involved the seizure of the book by U.S. Customs officials. In his opinion holding that the book was not obscene, U.S. District Judge John Woolsey held that the artistic value of the book insulated it from a charge of obscenity. Obscenity, the judge ruled, was defined by the tendency of sexually explicit materials to excite sexual passions among those with normal sexual tendencies. This was a significant departure from the Hick-lin analysis, which focused on the effects that obscenity had on those who were most susceptible to messages of sexual immorality.
The Ulysses decision was not appealed to the U.S. Supreme Court, and it took the Supreme Court another twenty years before it finally attempted to set forth a constitutional standard for regulating obscenity. In its 1954 decision in Roth v. United States, the Court announced the first of what would be several constitutional standards for obscenity regulation. In several ways, the Court moved beyond the restrictive Hicklin standard that had defined American obscenity prosecutions for almost one hundred years. The Supreme Court held in Roth that sexually explicit speech contained within otherwise intellectually valuable expression could not be deemed obscene. In addition, the Court rejected the notion that obscenity should be defined by the sexual tendencies of the most susceptible portion of the population. Unfortunately, although the Court's opinion contained a broad statement of general principles pertaining to art and literature, the Court was unsuccessful in defining precisely where the realm of art ended and the realm of the legally obscene began. The Roth decision therefore resulted in almost twenty years of litigation in the Supreme Court over the factors that contribute to a finding of obscenity. This dispute over the general constitutional standard was finally resolved in 1973 in Miller v. California, a case that continues to frame discussions of the legal regulation of obscenity.
The Obscenity Standard
In Miller, the Supreme Court provided a three-part standard that governs both criminal and civil regulations of obscenity. Under the so-called Miller test, the government must prove that the sexually explicit material that it seeks to regulate (1) appeals primarily to the prurient interest as judged by contemporary community standards, (2) depicts sexual conduct that is patently offensive under contemporary community standards, and (3) lacks serious literary, artistic, political, or scientific value.
This standard is more protective of expression than earlier standards in several respects. First, when judging allegedly obscene expression, a judge or jury must consider the work as a whole. This diverges from earlier standards, which permitted judges and juries to consider obscene passages in isolation and out of the expression's larger literary or artistic context. Second, the reference point for the "prurient interest" and "patent offensiveness" components of the standard is the average person, rather than the person who is the most susceptible to influence by pornographic materials. Third, the inclusion of an intellectual-value component in the obscenity standard ensures that artistic, literary, and scientific works are no longer subject to the whims of local censors or customs officials—as has frequently been the case in the past. Moreover, unlike the first two elements of the Miller test, the intellectual-value element of the test is measured by a national standard rather than a local community standard. Thus, a local community can no longer deny its residents access to a respected literary work such as Ulysses simply because the work contains some graphic sexual passages that transgress local sexual mores.
Despite the more protective elements of the Miller test, several elements of that standard continue to create confusion in the regulation of allegedly pornographic materials. The first problem stems from the vagueness of the terminology used in the standard. The terms "prurience" and "patently offensive" are neither precise nor clear. The Supreme Court has subsequently suggested that these terms refer only to "hard-core" pornography, but the scope of that term is also subject to vigorous dispute. The fact that prurience and patent offensiveness is measured by contemporary community standards is another source of uncertainty in the Miller test. The Supreme Court has never defined the exact parameters of the relevant community; it has chosen instead to leave to local courts the exact scope of the geographic area covered by the term. At the very least, this localized standard produces significant variation in the application of obscenity laws throughout the country. What is obscene in Utah or Alabama will not necessarily be obscene in New York or California. This inconsistency can cause serious problems as the nation's communications industry becomes increasingly national and even international in scope, because tailoring content for the more restrictive communities will be difficult and expensive if not technologically impossible.
Despite the flaws in the Miller test, it has generally provided, in most communities, a broad protection for expressive materials that contain sexual content. The generally protective Miller test does not apply, however, to sexually explicit materials that include visual depictions of under-age children engaged in sexual activity. The Supreme Court has held that materials of this sort may be regulated much more easily than materials that depict adults. Government authorities may regulate these materials without proving that they are prurient or patently offensive. The Supreme Court has clearly held, however, that the government cannot ban all depictions of nudity involving minors; thus, the lenient standard for prosecuting child pornography seems limited to relatively rare situations that involve visual depictions of live sexual activity by minors. The Supreme Court has also held that a work using a person over the statutory age who appears under-age is not subject to the lowered standard for child pornography. Furthermore, it is unclear whether the Supreme Court would permit prosecutions over sexual depictions of minors in expressive materials that have serious literary, artistic, political, or scientific value.
One final aspect of the modern free speech standard involves the private possession of pornography, including material that may be deemed obscene under the Miller test. The Supreme Court ruled in Stanley v. Georgia (1969) that the possession of pornographic materials for personal use at home is protected by the U.S. Constitution even if the commercial distribution of the same materials could be prosecuted under the Miller test. The Court relied on a combination of privacy and free speech principles to justify this exception to the general rule that obscene materials are not protected by the Constitution. The Court noted that these principles could not be reconciled with the act of government officials sifting through an individual's library to identify contraband books or movies. Therefore, except in cases of child pornography, mere possession of pornographic materials is protected by the Constitution.
In the modern legal vocabulary, "indecent" speech refers to speech that contains sexual content but is not sufficiently explicit to fall within the definition of obscenity as defined by the Miller test. Except in the context of radio and television broadcasts, where special rules apply, indecent speech may not be banned, criminalized, or otherwise sanctioned by the government. However, the courts have permitted local governments to apply special zoning restrictions on bookstores and movie theaters that specialize in "indecent" adult entertainment.
These restrictions generally take the form of zoning laws that isolate such establishments in a few areas of a town—away from schools, churches, and residential areas. The theory behind upholding these restrictions is that although indecent (but not obscene) expressive materials are constitutionally protected, cities and towns may regulate establishments in order to protect against the "secondary effects"—such as prostitution and other crimes—that the distribution of indecent expressive materials can attract.
Regulating Sexual Expression on Radio, Television, and Cable
Another context in which regulation may occur is when materials are transmitted on radio or television. The Supreme Court has permitted the federal government to regulate both indecent speech (i.e., profanity) and other indecent sexual expression in both media. The theory behind permitting the stricter regulation of constitutionally protected speech in the broadcast context is that broadcasting intrudes into the sensibilities of unwilling listeners to a far greater extent than do other forms of communication. In a case involving a comedy routine that contained numerous expletives, the Supreme Court upheld a Federal Communications Commission sanction against a radio station that broadcast a tape of this routine at a time when children might be listening. Based on this theory, the government continues to require that speech containing indecent material must be broadcast at a time that is later than the time that is allocated to family-oriented programming.
The constitutionality of government regulation of indecent speech that is transmitted over cable television is less clear-cut. On one hand, the Supreme Court has permitted cable companies to ban indecent speech from leased-access channels that are controlled by the cable companies. On the other hand, the Court has invalidated federal regulations that require cable companies that agree to carry channels containing indecent speech to block, scramble, and segregate those channels in a way that permits subscribers to receive such channels only upon written request. The Court held that a simpler, less-intrusive blocking requirement was sufficient to protect unwilling viewers while still protecting the free speech interests of speakers and willing viewers. Although the decisions involving cable regulation are somewhat unclear, the standard seems to protect speech from government regulation more vigorously in the cable context than in the context of radio and "regular" television broadcasts.
Obscenity and the Internet
The Internet is the newest medium in which issues of pornography regulation have arisen. The Supreme Court invalidated the Communications Decency Act of 1996, which was a major congressional attempt to regulate pornography on the Internet. The statute prohibited the transmission of indecent material to anyone who was under the age of eighteen. The statute was premised on the theory that the Internet was intrusive into private homes to the same extent as radio and television broadcasts, and therefore, Congress could regulate speech over the Internet to the same degree. The Supreme Court rejected this theory on the ground that the regulation would severely limit access for adults who wanted to view sexually explicit materials. More broadly, the Court described the Internet as a vast democratic forum in which speech should be allowed to flourish in much the same way as it does in traditional public forums such as public parks. Although the Court did not fore-close the possibility of some regulation in the future, it did suggest that the First Amendment was incompatible with any regulation that significantly inhibited a willing adult from accessing sexually explicit material.
The Internet regulation case may indicate the future direction of law regarding the regulation of pornography. The Internet provides easy and quick access to materials from all over the world, and some of the materials contain sexual expression. This globalization of speech undermines the decentralized enforcement of the Miller obscenity standard, which relies on local community standards for two of its three basic components. The Supreme Court's Internet opinion may portend a shift by the Court to a standard that is defined by individual viewer interest rather than collective community standards. In other words, the world defined increasingly by the easy availability of speech over the Internet shifts to individuals the authority to decide for themselves the moral acceptability of pornographic speech. Under this analysis the government would have an interest only in ensuring that pornographic speech is not foisted on unwilling viewers. Under these circumstances, the government would no longer have the paternalistic responsibility of defining and enforcing a standard defined by the parochial perceptions of an isolated and morally homogeneous local community that no longer exists in the new world of global information.
Adler, Amy M. (1996). "What's Left?: Hate Speech, Pornography, and the Problem for Artistic Expression." California Law Review 84:1499-1572.
De Grazia, Edward. (1992). Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius. New York: Random House.
Dworkin, Ronald. (1981). "Do We Have a Right to Pornography?" Oxford Journal of Legal Studies 1:177-212.
Finnis, John. (1967). "'Reason and Passion': The Constitutional Dialectic of Free Speech and Obscenity." University of Pennsylvania Law Review 116:222-243.
Gey, Steven G. (1988). "The Apologetics of Suppression: The Regulation of Pornography as Act and Idea." Michigan Law Review 86:1564-1634.
Hawkins, Gordon, and Zimring, Franklin E. (1988). Pornography in a Free Society. New York: Cambridge University Press.
Henkin, Louis. (1963). "Morals and the Constitution:The Sin of Obscenity." Columbia Law Review 63:391-414.
Kalven, Harry, Jr. (1960). "The Metaphysics of the Law of Obscenity." Supreme Court Review 1960:1-45.
Kendrick, Walter M. (1987). The Secret Museum: Pornography in Modern Culture. New York: Viking Press.
Lockhart, William B., and McClure, Robert C. (1954). "Literature, the Law of Obscenity, and the Constitution" Minnesota Law Review 38:295-395.
Nahmod, Sheldon H. (1987). "Artistic Expression and Aesthetic Theory: The Beautiful, the Sublime, and the First Amendment." Wisconsin Law Review 1987:221-263.
Post, Robert. (1988). "Cultural Heterogeneity and the Law: Pornography, Blasphemy, and the First Amendment." California Law Review 76:297-335.
Richards, David A. J. (1974). "Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment." University of Pennsylvania Law Review 123:45-91.
Schauer, Frederick. (1976). The Law of Obscenity.Washington, DC: Bureau of National Affairs.
Stone, Geoffrey R. (1986). "Anti-Pornography Legislation as Viewpoint Discrimination." Harvard Journal of Law and Public Policy 9:461-480.
Steven G. Gey