2012-08-10 17:10:10


Despite the various uses of the word ‘‘obscene,’’ the Anglo-American law of obscenity since the midnineteenth century has been concerned primarily with the sexual connotations of the word. Obscenity laws regulate sexually explicit materials. Among the enduring questions of political theory that such laws implicate are speculations on the essence of human nature, the relationship between law and morals, and the appropriate role of the state in a democratic society that values certain fundamental individual liberties (most notably in this context freedom of expression).

If one of the purposes of law is to provide order and security to society, an inevitable question arises: What are the threats to society posed by such materials? One might intuitively answer that individuals immersed in sexually explicit material may be incited to commit a variety of crimes, sexual or otherwise (such as violence against women). But even in the absence of overt antisocial behavior, may not such materials demean the individual and blunt his or her moral and aesthetic feelings, in turn leading to a general weakening of the moral fabric of society? Consider, however, the 1970 report of the Commission on Obscenity and Pornography, a presidential commission appointed by Lyndon B. Johnson to investigate the possible harms created by what at the time was considered an unprecedented flood of sexually explicit material. The report (delivered to Richard Nixon, Johnson’s successor) concluded that there was no evidence that ‘‘exposure to explicit sexual materials plays a significant role in the causation of delinquent or criminal behavior.’’ The report also doubted whether obscenity causes other types of antisocial behavior. In fact, given evidence that repeated exposure to such materials led to lowered levels of arousal, the commission concluded that ending legal restraints might also lead to a diminished interest in pornography.

President Nixon rejected the commission’s conclusions and recommendations, characterizing them as ‘‘morally bankrupt,’’ and analogized the relationship between free speech and pornography to that between liberty and anarchy. As Richard F. Hixson notes in Pornography and the Justices, it must have been ‘‘unthinkable for Americans, who have always felt a need to regulate obscenity, to cease and desist.... Empirical data pitted against belief structure seldom wins the day.’’ (But as Nixon undoubtedly understood, playing to belief structures wins on election day.)

In 1986, President Reagan’s attorney general, Edwin Meese, headed a new commission on pornography and reported on experimental studies concluding that exposure to violent pornography was related to greater willingness to behave violently in laboratory experiments. Critics responded that the most such studies show is that depictions of any violence, erotic or not, correlate with more violence in laboratory experiments. These critics also pointed to the continuing lack of evidence that nonviolent sexual depictions increase aggressive or violent behavior.

Early Legal Concepts and Developments

All of the states that ratified the First Amendment had laws making either blasphemy or profanity a crime, and some states made it a crime, in the words of the Massachusetts Bay Colony statute, to disseminate ‘‘any filthy, obscene, or profane song, pamphlet, libel or mock sermon.’’ In the early nineteenth century, many municipalities also made criminal distribution of obscene printed materials—although none of these laws, state or local, defined ‘‘obscenity.’’

In Anglo-American law, the first widely accepted judicial test for deciding obscenity derived from an English case, Regina v. Hicklin (1868). Lord Chief Justice Cockburn described the test for obscenity in this way: ‘‘whether the tendency of the matter ... is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.’’ The work involved in this case was a familiar anti-Catholic diatribe, The Confessional Unmasked; Shewing the Depravity of the Romanish Priesthood, the Iniquity of the Confessional and the Questions Put to Females in Confession. The tract was far more political and religious than sexual, but Cockburn found it obscene because it would suggest to young persons (of either sex) ‘‘impure and libidinous’’ thoughts.

Under the Hicklin test, obscenity was decided on the basis of the impact of parts of the offending material (rather than the work as a whole) on the most susceptible individuals. The test took no account of the author’s intent. If the work was adjudged obscene, improper motive was implied. In essence, the basis for censorship became isolated passages, and their potential to corrupt was measured by the corruptibility of the most innocent and vulnerable.

At about the same time in America, an expanding market for pornography after the Civil War collided with a quintessential American Puritan, Anthony Comstock, who spearheaded a crusade for direct government involvement in the suppression of obscenity. Comstock’s overwhelming concern was sexual, as opposed to religious, obscenity. In 1865, Congress had passed the first statute prohibiting the shipment of obscene books and pictures through the mails. In 1873, Congress passed the so-called ‘‘Comstock Act,’’ an omnibus antiobscenity bill. In 1876, the Act was amended to label obscene publications ‘‘nonmailable.’’ Comstock was appointed a special agent by the postmaster general to enforce the law, which he did with sometimes manic fervor until his death in 1915.

American judges followed their English counterparts and allowed seizure of or prosecution for materials that tended to deprave and corrupt those whose minds were susceptible to immoral influences, especially sexual influences. Among the typical materials seized as obscene in this era (1873–1936) were advertisements for contraceptives, descriptions of the biology of human reproduction, sympathetic discussions of homosexuality, and accounts of incidents of fornication or sodomy.

In 1896, the U.S. Supreme Court began its foray into obscenity law when it reviewed two lower-court convictions. In one, it upheld the conviction of a New York publisher who had mailed ‘‘indecent’’ pictures of women in violation of the Comstock Act. Justice John Marshall Harlan (I) approved of the trial judge’s use of the Hicklin test. Six weeks later, the Court overturned the conviction of a defendant who mailed a newspaper article containing language that the Court found ‘‘coarse and vulgar’’ but not obscene. Obscenity, the Court held, concerns words that ‘‘signify that form of immorality which has relation to sexual impurity.’’

In 1913 in a federal district court case, United States v. Kennerly, Judge Learned Hand characterized the Hicklin test as consistent with mid-Victorian morals but not contemporary American ones. Hand lamented its tendency ‘‘to reduce our treatment of sex to the standard of a child’s library in the supposed interest of a salacious few...’’

Hand did not suggest a better test, but in 1933, in United States v. One Book Entitled ‘‘Ulysses,’’ Federal District Judge John M. Woolsey proposed a test that would examine the impact or dominant effect of the whole book on the average reader of normal sexuality, coupled with an evaluation of the author’s intent. Using that test, Woolsey concluded that James Joyce’s Ulysses, while unusually frank in some of its passages, was not written solely for the purpose of sexual exploitation. Woolsey’s opinion was upheld by the Second Circuit Court of Appeals. Judge Augustus Hand (a cousin of Learned Hand), approving the ‘‘work as a whole’’ approach, argued that the sexually explicit passages in the book portrayed the thoughts and feelings of the novel’s characters and were not meant ‘‘to promote lust or portray filth for its own sake.’’

Judge Learned Hand (who by now had been promoted to the Second Circuit Court of Appeals) returned to the fray in 1936 in United States v. Levine. The ‘‘isolated passages’’ approach, Hand wrote, was one that ‘‘[n]o civilized community not fanatically puritanical would tolerate....’’ The work in question must be judged in its totality. ‘‘If it is old, its accepted place in the arts must be regarded; if new, the opinions of competent critics in published reviews or the like must be considered.’’

As early as 1930 in Near v. Minnesota, the Supreme Court had suggested (without directly addressing the question) that obscenity is not protected by the First Amendment, but it was not until 1941 that the Court said so directly and unequivocally (although still relying on assumption rather than reasoned constitutional argument). The case was Chaplinsky v. New Hampshire. The opinion by Justice Frank Murphy is based on what came to be known as the two-tiered theory of the First Amendment—some speech is protected, some is not. The case involved a conviction for using so-called ‘‘fighting words’’ (defined by Murphy as ‘‘those which by their very utterance inflict injury or tend to incite an immediate breach of the peace’’). Murphy argued that fighting words are similar to obscenity and lewdness and libel. All such expressions ‘‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’’ Note that as lower-level ‘‘worthless’’ speech, totally outside the realm of constitutional protection, obscenity could be punished without any proof of threat to society. Unlike ‘‘fighting words,’’ the Court offered no definition of obscenity. (In a 1952 case, Beauharnais v. Illinois, Justice Felix Frankfurter, without any further definition or elaboration, equated obscenity and group libel, describing both as outside ‘‘the area of constitutionally protected speech.’’)

Following World War II, not only babies were booming. Pornography came into its own—soldiers carried pornography home from overseas, and a whole new generation of pulp literature flourished. The first issue of Playboy, featuring a buxom Marilyn Monroe on the cover, appeared in December 1953, followed soon by less pretentiously smutty scandal magazines like Confidential and Keyhole. At the same time, lurid paperbacks proliferated. And again, eros and thanatos clashed, with a new wave of decency campaigns worthy of Comstock’s crusaders. But the new Comstockians now seemed like throwbacks out of the mainstream. The battleground shifted from Times Square to the courtrooms as efforts by law enforcement officials to suppress pornography brought a new wave of litigation, making inevitable and necessary the Supreme Court’s addressing directly the question of the definition of obscenity and the precise constitutional status of obscene expression.

From Roth-Alberts to Miller

In 1957, the Court decided two cases, Roth v. United States and Alberts v. California, involving respectively a federal and a state obscenity statute. Justice William J. Brennan, writing for the Court, argued that the First Amendment protected all ideas ‘‘having even the slightest redeeming social importance....’’ Obscenity, however, had been condemned by history and by the Court (citing Chaplinsky), and thus Brennan held that it was ‘‘not within the area of constitutionally protected speech.’’

Brennan went on to reject the argument that the state bears the burden of proving that any given allegedly obscene material was related to antisocial conduct; if obscenity is without constitutional protection, then the government can control it without any further justification.

The Court also drew an important (and frequently misunderstood) distinction between sex and obscenity. Sex is a vital component of the human experience, and portrayals of sex (as in art, literature, or scientific works) are entitled to full constitutional protection, unless the work ‘‘deals with sex in a manner appealing to prurient interest,’’ in which case it is obscene. Elaborating on this distinction, Brennan articulated what came to be known as the Roth-Alberts test for obscenity: ‘‘[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’’

Essentially, Brennan held that material is obscene and thus entitled to no constitutional protection if it appeals to a prurient interest in sex, has no redeeming value (either literary, artistic, political, or scientific), and is (in its totality, not just in isolated portions) offensive to the average person reflecting contemporary community standards.

Thus, a single word—‘‘prurient’’— became the key to distinguishing between allowable discussions or portrayals of sex and sexual activity, and proscribed obscenity. Justice Brennan defined the word in this way: ‘‘[i]tching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd....’’ As Professors Nowak and Rotunda observe, it is ‘‘possible that material can be prurient and political; that it can be possessed of a tendency to excite lustful thoughts and contain profound social commentary....’’ That insight, they surmise, explains Chief Justice Earl Warren’s concurrence in these cases, in which he argued that the conduct of the defendant, not the obscenity of the material, is (or should be) the primary concern of the courts. Justice Harlan (II) in a separate opinion pursued this point, arguing that obscenity is an abstraction that cannot be solved in the generalized way Brennan chose. Instead, Harlan opted for a case-by-case approach that would allow courts to take into account the unique value and individuality of every communication. The constitutional standards ‘‘do not readily lend themselves to generalized definitions’’ so that ‘‘the constitutional problem in the last analysis becomes one of particularized judgments’’ to be made by appellate courts themselves. (He also argued that states have considerably more leeway to regulate obscenity, consistent with the Fourteenth Amendment, than the federal government possesses under the First Amendment.)

Finally, Justices William O. Douglas and Hugo Black dissented, and what they wrote is often cited as a prime example of their First Amendment absolutism. They averred that obscenity, however defined and in whatever context, is still a form of expression, and no expression can be punished under our constitution unless ‘‘it is so closely brigaded with illegal action as to be an inseparable part of it....’’ (Eleven years later Douglas would make a similar criticism of the Court’s revised Clear and Present Danger Test in Brandenburg v. Ohio [1969].) Allowing the state to punish speech that has an undesirable impact on thoughts ‘‘is drastically to curtail the First Amendment....’’

Some critics denounced the Roth decision as another example of the Warren Court’s liberal activism, paving the way for pornographers to ply their trade with few restraints. Others welcomed the effort to make obscenity standards more precise, and thus give some notice to those who dealt in sexually explicit materials, as well as providing some guidelines for legislators and prosecutors who did not want to run afoul of the First Amendment. Many cautioned that the decision raised more questions than it answered.

A foreshadowing of future difficulties came in 1964 in Jacobellis v. Ohio. The Court held that a trial court’s finding that material was obscene was not binding on review; the appellate court taking the case would have to watch the movie or read the book to make ‘‘an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.’’ The definitional problems were vividly illustrated by Justice Potter Stewart’s comment in Jacobellis: ‘‘I shall not today attempt further to define the kinds of material I understand to be embraced [by the word obscenity] and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.’’ (Stewart further muddied the waters when he equated obscenity with pornography, though he qualified pornography with the adjective ‘‘hardcore’’— also presumably identifiable only through the Stewart eyeballing test). It was becoming painfully obvious that the Supreme Court could not agree on any more precise formula to apply consistently to allegedly obscene material.

In 1966 in A Book Named ‘‘John Cleland’s Memoirs of a Woman of Pleasure’’ v. Attorney General of Massachusetts, the Court reviewed the conviction under a Massachusetts obscenity statute of the book known as Fanny Hill. In overturning the conviction, Justice Brennan held that each of the three elements of the Roth-Alberts rule had to be applied independently, and material cannot be obscene if it meets any one of them. The work in question was something of a classic of ribald literature, written in 1748–1749 in England, and Brennan concluded that therefore it could not be found ‘‘utterly without redeeming social value’’ (Emphasis in original). Now, it seemed, the pruriency of the work was not the focus of inquiry as it had appeared to be in Roth.

That same year, Justice Brennan wrote for the Court again in Ginzburg v. United States. The materials involved here were arguably not obscene, and possessed of social value, but Brennan focused on the publisher’s efforts to market the materials, which Brennan characterized as ‘‘commercial exploitation of erotica solely for the sake of their prurient appeal.’’ Paradoxically, Brennan did not even discuss the question of the social value of the publications, grounding his decision only on what he characterized as ‘‘pandering’’ by publisher Ralph Ginzburg, and leaving unanswered the question of why intent to appeal solely to prurient interests can outweigh the social value of the materials.

The Court in this period also disagreed on the proper understanding of ‘‘contemporary community standards.’’ Some justices favored a national community standard (and some only for federal prosecutions); others favored local community or state standards, with greater or lesser degrees of flexibility.

Beginning with Redrup v. New York in 1967, the Court overturned an obscenity conviction in a per curiam decision without an opinion—a practice that would be followed thirty times over the next six years. As Justice Brennan would later explain (in 1973 in Paris Adult Theatre I v. Slaton), convictions were reversed for any materials ‘‘that at least five members of the Court, applying their separate tests, deemed not to be obscene.’’

The Miller Test

By 1973, the Warren Court had given way to the Burger Court, and several other changes in personnel made it possible for a five-justice majority, for the first time since Roth, to coalesce on a new test for obscenity. The case was Miller v. California.

Chief Justice Warren Burger wrote the opinion of the Court. Burger began with certain fundamentals, affirming, for example, that there are ‘‘few eternal verities’’ in matters literary, artistic, political, or scientific, and that courts must remain sensitive to any infringements on freedom of speech or the press. Thus, statutes designed to regulate obscenity must be carefully limited. Nonetheless, the fundamental notion of Roth remained—obscenity is not protected by the First Amendment.

Burger then articulated the test for obscenity (one that continues to be followed). The ‘‘basic guidelines’’ for trial courts determining obscenity must be

(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Element (c) of Burger’s formulation was a reaction to the ‘‘utterly without redeeming social value’’ test utilized in earlier decisions. Burger argued that the standard required the prosecution to prove a negative (the work has absolutely no social value)—a burden ‘‘virtually impossible to discharge under our criminal standards of proof.’’ Presumably the shift from ‘‘utterly’’ to ‘‘serious’’ was meant to give juries a bit more leeway to find materials obscene. (In Pope v. Illinois in 1987 the Court held that, unlike pruriency, the value of a work does not vary from community to community— the standard is whether a ‘‘reasonable person’’ would find value in the material taken as a whole.)

The Court gave examples of patent offensiveness: ‘‘ (a) Patently offensive representations of ultimate sexual acts, normal or perverted, actual or simulated; (b) Patently offensive representations of masturbation, excretory functions, and lewd exhibition of the genitals.’’ (In Ward v. Illinois [1977], an obscenity case involving sadomasochistic materials, the Court held such materials could be constitutionally proscribed even though they were not among those listed in Miller. The Court argued that the Miller specifics ‘‘were offered merely as ‘examples’ ..., they ‘were not intended to be exhaustive.’’’)

Particularly interesting is Justice Brennan’s dissent in another obscenity case handed down the same day as Miller. Brennan’s primary concern was that all of the Court’s obscenity standards, from Roth to Miller, were intolerably vague and therefore threatening to fundamental First Amendment values. He would not say that the state’s interests in this area are trivial or nonexistent, but nonetheless ‘‘these interests cannot justify the substantial damage to constitutional rights ... that inevitably results from state efforts to bar the distribution even of unprotected material to consenting adults.’’ Brennan allowed an exception for ‘‘distribution to juveniles or obtrusive exposure to unconsenting adults....’’ Additionally, he would allow state regulation of the manner of distribution of sexually oriented material. But the tastes of consenting adults were off limits. A more pristine example of John Stuart Mill’s ‘‘harm principle’’ is difficult to imagine. (In a 1990 interview with Nat Hentoff, Brennan stated: ‘‘I put 16 years into that damn obscenity thing.... I tried and I tried, and I waffled back and forth, and I finally gave up. If you can’t define it, you can’t prosecute people for it.’’)

Special Problem Areas

Protection of Minors; Private Possession: Even Justice Brennan conceded that when it came to minors, different rules may apply. In Ginsberg v. New York (1968), the Court found constitutional a statute that defined obscenity in terms of an appeal to the prurient interest of minors. But the Court has also held in a variety of contexts that statutes designed to protect children must be narrowly drawn and must meet familiar First Amendment proscriptions on overbreadth and vagueness.

A more recent concern has been child pornography and the frequent abuse of children used to create such materials. In 1982 in New York v. Ferber, the Court in essence created a new category of speech that was unprotected by the First Amendment—sexually explicit but not constitutionally obscene materials depicting sexual activity by minors. The Court upheld Ferber’s conviction under a New York state statute making it a crime to knowingly promote sexual performances by children under the age of sixteen by distributing material depicting such performances. Ferber himself was not engaged in the production of child pornography; he merely sold pornographic films. To Ferber’s dismay, one of his customers was an undercover police officer.

Justice Byron R. White wrote for the Court, arguing that the state’s interest in protecting the physical and psychological health of minors is a compelling one, and that the harm to children used in the production of such materials is magnified by their sale and distribution, and concomitant increase in demand for the product. White added that if there is a legitimate need to portray sexual conduct by minors, it can be achieved through the use of models over the statutory age who look younger.

Relying on Ferber, the Court in Osborne v. Ohio in 1990, held that the state could prohibit the possession and viewing of child pornography at home. The defendant had cited a 1969 Supreme Court decision, Stanley v. Georgia, which had held that ‘‘mere private possession of obscene matter’’ in one’s home is not a crime. The Court thought the distinction between the two cases was clear—in Osborne, unlike Stanley, the state was not relying for its defense of the statute on the paternalistic interest in regulating Osborne’s thoughts and feelings. Rather, the state’s purpose was to protect the child victims of such pornography by destroying the market at every point in the production/ distribution chain, right down to private ownership and use of the material.

In Ashcroft v. Free Speech Coalition (2002), the Court overturned part of the Child Pornography Protection Act of 1996 (CPPA) that included within the realm of federally prohibited child pornography socalled ‘‘virtual pornography,’’ that is, sexually explicit images which appear to be real children but are created either by using adults who look like children or by using computer imaging. To the extent that the law prohibited virtual child pornography it was unconstitutional because the materials were not produced through the exploitation of real children.

The Internet and Sexually Explicit Materials: In 1997 the Court overturned various provisions of the Communications Decency Act of 1996 (CDA) in the case of Reno v. American Civil Liberties Union. Congress passed the legislation to protect minors from allegedly ‘‘indecent’’ and ‘‘patently offensive’’ material on the Internet. Some in Congress relied on an earlier Supreme Court decision, FCC v. Pacifica (1978), which upheld the power of the Federal Communications Commission (FCC) to sanction a broadcaster for transmitting ‘‘indecent’’ but not obscene material during a time when children were likely to be in the audience.

The CDA made it a federal crime to transmit indecent or obscene material over the Internet, and specifically prohibited the knowing transmission of such material to any recipient under 18 years of age. Another section criminalized patently offensive messages. The law did not apply to those who took reasonable measures to restrict access by minors to such communications, and also exempted those who restrict access to such materials by requiring certain specific forms of proof of age, such as a verified credit card.

The Court held that the prohibition on indecent material over the Internet was unconstitutional. Distinguishing Pacifica, Justice John Paul Stevens (writing for himself and six other justices) argued that the CDA applies to all hours of the day or night, and involves criminal penalties, rather than the milder regulatory sanctions imposed by the FCC in Pacifica.

Stevens emphasized the statute’s vagueness. ‘‘Could a speaker confidently assume that a serious discussion about Birth Control practices, homosexuality, or the consequences of prison rape would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials.’’ Another overriding concern for Stevens was the statute’s overbreadth. ‘‘Its open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors.’’ The broad terminology Congress used covers ‘‘large amounts of nonpornographic material with serious educational or other value.’’

In response to the decision in Reno v. American Civil Liberties Union, Congress passed the Child Online Protection Act (COPA), which requires operators of commercial websites to limit children’s access to sexually oriented material that the average person ‘‘applying contemporary community standards’’ would determine panders to a minor’s prurient interest. Unlike the CDA, this law applies only to commercial websites and defines offensiveness in relation to community standards. The law requires such websites to take measures (for example, age verification services, credit card validations) to exclude children. Also unlike the CDA, no material is prohibited—if the website takes steps to keep children out.

A federal district court and the U.S. Court of Appeals for the Third Circuit found the law unconstitutional because the use of contemporary community standards constituted a considerable restriction on speech when applied to a nationwide (indeed worldwide) medium such as the Internet, which cannot be limited to users in a particular geographic area.

In 2002, the Supreme Court in Ashcroft v. American Civil Liberties Union (I) held that use of the ‘‘community standards’’ approach was not overbroad under the First Amendment, and returned the case to the Third Circuit for additional proceedings. This time, the Third Circuit found that the law was not narrowly tailored and therefore was overbroad and therefore unconstitutional. The government appealed, and in 2004 in Ashcroft v. American Civil Liberties Union (II), the Supreme Court in a five-tofour decision returned the case to the District Court in Philadelphia for further scrutiny of what Justice Anthony Kennedy called ‘‘plausible, less restrictive alternatives’’ to COPA. In the interim, the injunction against enforcement of COPA that had begun in 1998 would remain in effect. While not addressing the ultimate question of the law’s constitutionality, the Court strongly hinted that the speech restrictions that the law imposes are overbroad in light of less restrictive, technology-based filters currently available.

Pornography and Feminism: Two prominent feminists, Catharine MacKinnon and Andrea Dworkin, have argued for a new exception to the First Amendment— pornography that graphically and explicitly portrays the sexual subordination of women. Such pornography, while not meeting the current legal definition of obscenity, is nonetheless in their view a form of sex discrimination against women and should be prohibited.

While the Supreme Court has not yet directly passed on the issue, an ordinance embodying the MacKinnon-Dworkin theory was enacted in Indianapolis, and in 1985 the U.S. Court of Appeals for the Seventh Circuit found it unconstitutional in American Booksellers Assn. v. Hudnut. The court held that the ordinance amounted to improper viewpoint discrimination, noting that ‘‘[s]peech treating women in the disapproved way—as submissive in matters sexual or as enjoying humiliation—is unlawful no matter how significant the literary, artistic, or political qualities of the work taken as a whole. The state may not ordain preferred viewpoints in this way.’’ (Not all feminists support censorship of such speech, and many question MacKinnon’s and Dworkin’s assumption that the category of ‘‘women’’ can be subsumed under a common identity. These feminists argue that not all women, regardless of race/ethnicity, culture, class, or beliefs, are automatically subordinated to a male patriarchy.)

Zoning Ordinances: The Supreme Court has indicated that some sexual speech is of such low value that, while not proscribable as obscenity, it is still subject to greater degrees of regulation. The most notable example involves zoning ordinances used by local governments to limit the location of adult bookstores and movie theaters. In Young v. American Mini-Theaters, Inc. in 1976 the Court upheld a city ordinance that limited the number of adult theaters that could be located on any given block and excluded such businesses from residential areas. In 1986 in City of Renton v. Playtime Theaters, Inc., the Court relied on Young to uphold an ordinance that forbade adult movie theaters within 1,000 feet of any residential, zone, church, park, or school. While the result of the ordinance was to place off-limits for such theaters about 95 percent of the land in Renton (a city in which the remaining 5 percent was hardly suitable for or available to such theaters), the Court rejected First Amendment arguments, holding that its conclusion followed inexorably from Young.


Justice John Marshall Harlan (II) once characterized the obscenity problem that he and his fellow justices (and their successors) attempted to deal with as ‘‘intractable.’’ Perhaps ‘‘insoluble’’ would have been a more appropriate description (as some have concluded). Most American judges, though, have persisted in their attempts to strike a balance between public law and private morality. In the process, they have gradually relaxed some of the restrictions on the public portrayal of sexuality. By the mid-1960s, there remained very few legal barriers against sexual expression—with the notable and not inconsiderable exception of materials deemed ‘‘obscene.’’ Thus, the Puritan strain that runs through American history seems alive and well, and after reviewing all that the courts have done in this area of law, one might be forgiven for concluding, with H.L. Mencken, that the essence of American Puritanism (popular and political) is ‘‘the lurking, lingering fear that somewhere, someone may be happy.’’


References and Further Reading

  • Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 2nd ed. New York: Aspen Law and Business, 2002.
  • Easton, Susan M. The Problem of Pornography. London: Routledge, 1994.
  • Hixson, Richard F. Pornography and the Justices. Carbondale: Southern Illinois University Press, 1996.
  • Lipschultz, Jeremy Harris. Broadcast Indecency. Boston: Focal Press, 1997.
  • Nowak, John E., and Rotunda, Ronald D. Constitutional Law. 7th ed. St. Paul, MN: Thomson West, 2004
  • Wallace, Jonathan, and Mangan, Mark. Sex, Laws, and Cyberspace. New York: Henry Holt and Company, 1996.

Cases and Statutes Cited

  • A Book Named ‘‘John Cleland’s Memoirs of a Woman of Pleasure’’ v. Attorney General of Massachusetts, 383 U.S. 413 (1966)
  • Alberts v. California, 354 U.S. 476 (1957)
  • American Booksellers Association v. Hudnut, 711 F. 2nd 323 (1985)
  • Ashcroft v. American Civil Liberties Union (I), 535 U.S. 564 (2002)
  • Ashcroft v. American Civil Liberties Union (II), 542 U.S. 656 (2004)
  • Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
  • Beauharnais v. Illinois, 343 U.S. 250 (1952)
  • Brandenburg v. Ohio, 395 U.S. 444 (1969)
  • Chaplinsky v. New Hampshire, 315 U.S. 468 (1942)
  • Child Online Protection Act of 1998, 37 U.S.C. Section 609 Child Pornography Act of 1996, 18 U.S.C. Section 2252A City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986)
  • Communications Decency Act of 1996, 47 U.S.C. Section 223 Comstock Act of 1873, 18 U.S.C. Section 1462M FCC v. Pacifica, 438 U.S. 726 (1978)
  • Ginsberg v. New York, 390 U.S. 629 (1968)
  • Ginzburg v. United States, 383 U.S. 463 (1966)
  • Jacobellis v. Ohio, 378 U.S. 184 (1964)
  • Miller v. California, 413 U.S. 15 (1973)
  • Near v. Minnesota, 282 U.S. 697 (1931)
  • New York v. Ferber, 458 U.S. 747 (1982)
  • Osborne v. Ohio, 495 U.S. 103 (1990)
  • Paris Adult Theatre I v. Slaton, 413 U.S. 166 (1973)
  • Pope v. Illinois, 481 U.S. 497 (1987)
  • Redrup v. New York, 386 U.S. 767 (1967)
  • Regina v. Hicklin, L.R. 2 Q.B. 360 (1868)
  • Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
  • Roth v. United States, 354 U.S. 476 (1957)
  • Stanley v. Georgia, 394 U.S. 557 (1969)
  • United States v. Kennerly, 209 F. 119 (1913)
  • United States v. Levine, 83 F. 2d 156 (1936)
  • United States v. One Book Entitled ‘‘Ulysses,’’ 72 F.2d 705 (1934)
  • Ward v. Illinois, 431 U.S. 767 (1977)
  • Young v. American Mini-Theaters, Inc., 427 U.S. 50 (1976)

See also A Book Named ‘‘John Cleland’s Memoirs of a Woman of Pleasure’’ v. Massachusetts, 383 U.S. 413 (1966); American Booksellers Association, Inc. et al. v. Hudnut, 771 F. 2nd 323 (1985); Brandenburg v. Ohio, 395 U.S. 444 (1969); Burger, Warren E.; Communications Decency Act (1996); FCC v. Pacifica Foundation, 438 U.S. 726 (1978); Fighting Words and Free Speech; Ginsberg v. New York, 390 U.S. 629 (1968); Hand, (Billings) Learned; Jacobellis v. Ohio, 378 U.S. 184 (1964); Miller v. California, 413 U.S. 15 (1973); Near v. Minnesota, 283 U.S. 697 (1931); New York v. Ferber, 458 U.S. 747 (1982); Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973); Redrup v. New York, 386 U.S. 767 (1967); Regina v. Hicklin, L.R. 2 Q.B. 360 (1868); Reno v. ACLU, 521 U.S. 844 (1997); Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986); Roth v. United States, 354 U.S. 476 (1957); Warren, Earl; Young v. American Mini-Theaters, Inc., 427 U.S. 50 (1976)