>>When we discussed the development of our modern free speech rights in our last section,
we saw that by the 1960's the Court had developed a two-level understanding to free speech:
strict scrutiny for political speech on the one hand but less protection or no protection
for four other categories of speech: obscenity, libel, fighting words, or commercial speech.
Traditional political speech gets the highest protection, but other kinds do not.
In this section we'll look at the development of obscene speech, particularly pornography.
A problem immediately arises though. If obscenity or obscene material is not protected under
the free speech clause in the same way that political speech is, how much can government
regulate it, up to and including banning it completely. Moreover, and just as important,
how do we define what is obscene -- is a medical textbook which depicts explicit images of
the human body of adults and children obscene. Is a work of art, like a Greek statue which
depicts the male genitalia obscene and unworthy of production? How about a dancer at an exotic
strip club? How about a dancer dressed the same way at an arthouse? How about hardcore
pornography?
In this section, we'll look at the development of obscenity, particularly involving pornography.
We'll see that, like other civil liberties issues we've discussed so far, ideas of what
is obscene have changed dramatically over time in the United States. We'll also see
how the Court has developed "tests" to determine whether challenged material is obscene -- thereby
withdrawing 1st amendment protection for the material -- or is not obscene, thereby giving
the material the full protection of the free speech clause.
Like with political speech, we inherited our notions of obscenity from English common law.
In fact, it was not until the 1950's that the Court abandoned the old common law tests
to determine obscenity. Up until the 1950's, then, the Court used the "Hicklin" test to
determine obscenity, allowing it to define it in almost any way they chose. The Hicklin
case was from 1868 and its standard for determining what was obscene was: "whether the tendency
of the matter charged as obscenity is to deprive and corrupt those whose minds are open to
such immoral influences and into whose hands a publication of this sort might fall".
As you can see, the test for obscenity under Hicklin was strict. In fact, the test suggested
that any material that was or could potentially offend "those whose minds are open" to such
influences effectively made any material which might offend or corrupt children obscene -- quite
a high bar.
It was not until the 1950's, though, that this test would be abandoned. Nevertheless,
the Court continued to develop "tests" to determine whether material should be deemed
obscene, thus receiving no first amendment protection.
The first attempt was Justice Brennan's test in Roth v. United States in 1957. Brennan
developed a two-pronged test: first the material had to be "utterly without redeeming social
value". The second was "whether the average person, applying contemporary community standards,
the dominant theme of the material taken as a whole appeals to prurient interests." A
few years later, in 1962, the Court would add a third prong: whether the material is
presented in a patently offensive way.
As a result of the Roth case only hard-core pornography was deemed obscene at the time.
But this was the decade of the 1960's and sexual revolution. In fact, there were so
many cases coming before the Court in the late 1960's that the Justices would watch
some of the challenged movies in the screening room inside of the Supreme Court building.
As cases continued to come up and social conservatives were pushing hard to have these newer materials
deemed obscene, a new, more conservative court would alter the Roth test in the early 1970's.
In 1973 in Miller v. California, the Court rejected the "utterly without redeeming social
value" prong from the Roth test. It kept the language about the material appealing to prurient
interests, but importantly it added two prongs: "Whether the work depicts or describes, in
a patently offensive way sexual conduct specifically defined by state law" and "whether the work,
taken as a whole, lacks serious literary, artistic, political, or scientific value."
The result was a greater deference to states and local communities in deciding what kind
of material is obscene and what kind is not.
We'll also see the court from the 1970's onward allow greater restrictions to pornography
not necessarily because it's deemed to be obscene, but because its regulation -- or
even complete ban -- is seen as necessary regulation of that material's secondary effects,
like crime. Also, in their balancing tests, we'll see that child pornography has never
been seen to survive, but some virtual depictions of minors have been deemed constitutional.
This is an exciting group of cases that show the difficulties of weighing individual rights
with legitimate governmental interests.
So as you read, think about the following questions:
Is there any definition of obscenity that perfectly keeps out the bad and protects the
good. Because there is legitimate differences between
Americans about what is and isn't obscene, how do we strike a balance?
Should the Court be the institution that strikes this balance for us?
Should states and localities make the decision? Or is there only one conception of what is
obscene and what is not?
The very protection of the First Amendment is at stake in your answers.