Roth v. United States, 354 U.S. 476 (1957)

The Roth case was the first modern articulation of the standard by which material may be deemed obscene.  Though the Court upheld the prior categorization of obscenity as non-speech that receives no First Amendment protection, it restricted the definition of obscenity to material whose “dominant theme taken as a whole appeals to the prurient interest” to the “average person, applying contemporary community standards.”  This was a more precise standard than the prior rule, which derived from the 1868 English case Regina v. Hicklin that defined obscenity merely as material that tended to “deprave and corrupt those whose minds are open to such immoral influences.”  But the Roth standard still left room for confusion among the Justices as to what, exactly, constituted obscenity, leading to Justice Potter Stewart’s famous assertion in Jacobellis v. Ohio that he could not define obscenity, but “I know it when I see it.”

Miller v. California, 413 U.S. 15 (1973)

The Miller case developed a three-part test that supplanted the earlier Roth standard and widened the scope for what material could be deemed obscene.  Under the Miller test, the court must consider:

  • whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

  • whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and

  • whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The first two prongs of the test are considered with respect to contemporary community standards, while the third prong applies a national “reasonable person” test.  Material must fail all three prongs of the Miller test to be considered obscene.  As discussed above, the law is still unsettled as to what the relevant community should be for cases involving dissemination of material via the Internet.

Indecent and Harmful-to-Minors Material

Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978)

The Pacifica case established the principle that the Federal Communications Commission had the authority to regulate indecent, but not obscene, content that was broadcast over the airwaves in the interest of protecting minors.  The FCC argued that it had a compelling interest in shielding children from material that was patently offensive to them, and in ensuring that unwanted speech did not enter people’s homes.  The Court agreed, reasoning that because the broadcast medium is a “uniquely pervasive presence” in people’s lives, reaching them in the privacy of their homes, and is accessible to children in a way that the written word may not be, the government may impose restrictions that aim to limit the broadcast of indecent speech to times when children are less likely to be in the audience.

Sable Communications v. Federal Communications Commission, 492 U.S. 115 (1989)

In Sable, the Court demonstrated that the FCC’s ability to restrict indecent speech truly depended on the unique nature of the broadcast medium.  In this case, the Court held that an FCC ban on indecent telephone messages (a.k.a. “dial-a-porn”) violated the First Amendment because it was overbroad and limited adults’ access to protected speech to an extent not justified by the interest in protecting children from such messages.  Dial-a-porn messages are not “pervasive” – indeed, one must take affirmative steps to access the indecent material.  Further, the FCC’s regulation of indecent broadcasts in Pacifica did not constitute a total ban, and the government was unable to present any sort of record that would indicate that a total ban for indecent phone messages was justified or required.  The Court held that there were less restrictive means of achieving the government’s goal of keeping kids away from indecent phone content, and struck down the ban as a violation of the First Amendment.

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)

Congress’s first attempt to regulate minors’ access to indecent material over the Internet was the Communications Decency Act (“CDA”).  Passed in 1996, the CDA made it a crime to disseminate indecent material online in a way that made it accessible to minors.  This law was challenged immediately on constitutional grounds, and the Supreme Court agreed, finding that “the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech.”  The Court drew a distinction between Internet-based and broadcast media, and held that the Internet should receive the highest level of First Amendment protection available.  Because the indecent material targeted by the CDA was constitutionally protected speech, the government could neither ban it nor drastically restrict adults’ access to it. 

The Court also warned of the chilling effects likely to occur when a “local community standards” assessment was used in relation to material available on the Internet: because online text, video, and images are immediately accessible by practically anyone in the world, there is a danger that the most restrictive community standards will be applied, and that, for fear of prosecution, speakers will censor themselves according to what is deemed suitable in the most restrictive communities.  The Court concluded that there were less restrictive means, such as user-controlled filters and other user empowerment tools, that could be implemented to protect children from indecent content without reducing all discourse on the Internet to the level appropriate for small children.

Child Online Protection Act of 1998

Following the Supreme Court’s rejection of the Communications Decency Act, Congress passed the Child Online Protection Act, which would have made it illegal to make any commercial communication that was “harmful to minors” unless the provider of the material had restricted minors’ access to it (such as by requiring a credit card number to view the material).  COPA was challenged on the same grounds as CDA, for both acting as an undue burden on protected speech and failing to achieve its goal of protecting children.  COPA restricted adults’ access to protected content, and would likely constitute a chilling effect on protected speech, as the age-verification process required by the law would be costly and time-consuming to implement.  The government could not claim that COPA would keep all or even most of the indecent content available online away from children, since the law would only apply to U.S.-based content providers, and the Internet is a global network.  COPA also did not present the least restrictive means for protecting children online, as user empowerment tools remained the best way for parents to decide for their own children what sort of material was or was not appropriate, while not hindering adults’ access to protected material.

Litigation over COPA dragged on for ten years, with two Supreme Court cases (Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002); Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004)) highlighting the constitutional problems with the statute.  Finally, in 2009, the Court declined to hear a final appeal from the Third Circuit’s invalidation of the rule on constitutional grounds, effectively striking down the law.

Children's Internet Protection Act

One federal law aimed at limiting children’s access to indecent content that has survived the Supreme Court’s scrutiny is the Child Internet Protection Act (“CIPA”).  This law, enacted in 2000, requires that public libraries receiving federal funding install filtering software on each of their computers that can access the Internet.  The American Library Association challenged this law in 2002, arguing that this requirement was equivalent to government-mandated censorship in libraries, and that it thus violated the First Amendment.  The federal district court in Pennsylvania agreed, finding that the filtering software required by the statute would both fail to block all of the material targeted by the statute and would overblock protected speech.  It struck down the law as a violation of library patrons’ First Amendment rights.

The Supreme Court reversed this decision on the grounds that the statute contained provisions allowing library staff to disable the filters at an adult patron’s request.  While the statute provides that this request must be related to “bona fide research or other lawful purposes”, the Court relied on the Solicitor General’s statements that a patron does not need to provide any explanation at all for why he or she wants the filtering software disabled.  Because the statute provides a fairly simple mechanism for adults to gain unfiltered Internet access, the Court ruled that CIPA did not violate the First Amendment.

Child Pornography

New York v. Ferber, 458 U.S. 747 (1982)

The question in this case was whether a legislature could prohibit the production and distribution of “material which shows children engaged in sexual conduct, regardless of whether such material is obscene.”  Non-obscene pornography is generally protected by the First Amendment, but this law sought to ban any sexual material produced using children.

The Supreme Court upheld this ban due to the strong interest the state has in protecting children from sexual abuse, finding that “the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.”  While the value of child pornography is “exceedingly modest”, the harm done to the children used in its production is severe, and the material itself serves as a permanent record of the abuse.  In order to dry up the market for child pornography (and reduce the number of children abused to produce it), the Court held that it was permissible to prohibit the production and distribution of the material and set child pornography as a category of non-speech outside of the protection of the First Amendment.  This rationale was later used to uphold laws that criminalized the possession of child pornography, as well (see Osborne v. Ohio, 495 U.S. 103 (1990)).

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

This case challenged the Child Pornography Prevention Act of 1996, which included a prohibitions on “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” that “is, or appears to be, off a minor engaging in sexually explicit conduct” and on “any sexually explicit image that was advertised, promoted, presented, described, or distributed in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct.”

The Free Speech Coalition argued that these two provisions were overbroad and likely to result in the suppression of non-obscene material that did not depict actual minors.  The Supreme Court agreed, finding that the rationale for prohibiting child pornography was the significant harm done to children in its production and distribution, but that the virtual child pornography also prohibited by the statute “records no crime and creates no victims by its production.”  Because the CPPA improperly prohibited protected speech, the Court struck it down as a violation of the First Amendment.

PROTECT Act of 2003

In response to the Court’s decision in Ashcroft v. Free Speech Coalition, Congress passed the PROTECT Act, which amended the 1996 Child Pornography Prevention Act to prohibit virtual child pornography images that are “indistinguishable” from true child pornography, as well as virtual depictions (including drawings, paintings, and cartoons) of child pornography that are also obscene.  Further, the PROTECT Act revised the “pandering” provisions, which prohibit promoting material “in a manner that reflects the belief, or that is intended to cause another to believe,” that the material contains child pornography.

The “pandering” provision was challenged in the case United States v. Williams (444 F.3d 1286 (11th Cir. 2007), rev’d 553 U.S. 283 (2008)).  The Eleventh Circuit struck down the provision as vague and overbroad, and found that the “First Amendment plainly protects speech advocating or encouraging or approving of otherwise illegal activity, so long as it does not rise to “fighting word” status.  Thus, the non-commercial, non-inciteful promotion of illegal child pornography, even if repugnant, is protected speech under the First Amendment.”

The Supreme Court disagreed, however, and overturned the Eleventh Circuit’s decision in 2008, finding in part that “offers to engage in illegal transactions are categorically excluded from First Amendment protection.”  The Court drew the distinction between proposals to engage in illegal activity, which may be prohibited, and mere abstract advocacy of illegality, which receives First Amendment protection.  Because this provision of the Act only prohibits offers to provide or obtain illegal material, and does not prohibit advocacy of child pornography in general, the Court held that the provision did not violate the constitution.

Center for Democracy and Technology v. Pappert, 337 F. Supp. 2d 606 (E.D. P.A. 2004)

In 2004, the Center for Democracy and Technology led a challenge against a Pennsylvania child pornography law that required ISPs to block users’ access to websites that contain child pornography.  In that case, CDT proved that the ISPs blocked access to more than one million innocent websites in an effort to comply with fewer than 400 child pornography blocking orders.  The federal court held that blocking of substantial amounts of protected speech violated the First Amendment, and that the law was therefore unconstitutional.

Other Resources

First Amendment Center: Arts & First Amendment: Nudity in Arts

First Amendment Center: Arts & First Amendment: Comic Books

National Coalition Against Censorship Art Law Library: Nudity

National Coalition Against Censorship Art Law Library: Obscenity

National Coalition Against Censorship Art Law Library: Harmful to Minors

Thomas Jefferson Center: Art on Trial: Obscenity and Art – Nudity

Thomas Jefferson Center: Art on Trial: Harmful to Minors

Thomas Jefferson Center: Art on Trial: Sexual Harassment and Artistic Expression