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Sexual Content

Nudity and depictions of sexual activity in art are protected under the First Amendment, unless they are obscene.

Generally, nudity and depictions of sexual activity in art are protected under the First Amendment.  But some of the most extreme sexually-oriented speech is not protected, and sexual content more broadly is frequently the target of criticism, and sometimes the target of state and federal regulations.  First Amendment case law has developed related to sexual content in almost every mainstream communications medium to emerge in the past century, including the Internet.

Regulations of sexually oriented speech cover content that falls into three main categories: obscenity, sexual content that is deemed to be “harmful to minors,” and child pornography.  Obscenity and child pornography are both considered illegal non-speech under the law – they are completely prohibited forms of expression that carry criminal penalties.  On the other hand, “harmful to minors” content is material that is fully protected under the First Amendment as to adult audiences, but can be regulated so as to prevent minors' access to the content.  The government may regulate minors’ access to the "harmful-to-minors" material (sometimes called "indecent" material) as long as the regulations do not unduly interfere with adults’ abilities to access the work. We discuss the definitions and limitations on these types of speech in the sections below.

The Basics

A brief discussion of the definitions of and limitations on obscene content, harmful-to-minors material, indecency, and child pornography.

What You Need to Know

The highlights to consider when putting your art containing nudity or sexual situations online.

Laws, Cases, and Other Resources

A more detailed analysis of the laws and cases that create the legal framework for sexual content in art.




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