Obscenity in History
English Roots of American Obscenity Law
The regulation of obscenity in America is rooted in the censorship that prevailed during the reign of Henry VIII in sixteenth-century England. The notorious Court of the Star Chamber used licensing and other methods to censor books and theater productions. The Star Chamber was concerned mainly with religious heresy and sedition—works that offend the church or state, rather than with sexual content. By the seventeenth century, though, the increasing sexual explicitness of English theater and literature led to demands for control over content that was immoral or concerned bad manners. As a result, at the start of the nineteenth century, the common law crime of obscene libel had developed and could be used to suppress content that was sexual rather than religious or political. Thus, obscenity regulation split off from its religious and political origins.
Sexually explicit content was controlled mainly because it was presumed to have harmful effects on its audience. This was illustrated in an early definition of obscenity that emerged from Regina v. Hicklin, an English case decided in 1868 that concerned an anti-Catholic pamphlet. The test for obscenity was whether the alleged obscenity would deprave or corrupt audience members who were susceptible to this type of influence, rather than whether the material would have such an influence on members of the general public.
Colonial America and the Early Republic
The law of obscenity developed in the American colonies in a manner similar to its development in England, with the original emphasis on religious speech. Laws that criminalized blasphemy or heresy began to appear in the early eighteenth century and emerged in all colonies. Obscenity was also prohibited by the states. The first reported conviction for the common law crime of obscene libel, Commonwealth v. Sharpless, occurred in 1815 in Pennsylvania. Sharpless was accused of exhibiting for money a painting of a man and a woman in an ‘‘indecent posture.’’ This behavior threatened the peace and dignity of all residents of Pennsylvania, and had the potential to corrupt and subvert its youth, according to the court. The court looked to English precedent and held that obscene libel was a crime in the commonwealth as well. ‘‘The courts are guardians of the public morals,’’ the court stated. Similarly, in Commonwealth v. Holmes, the Supreme Judicial Court of Massachusetts in 1821 assumed that obscene libel was a common-law misdemeanor over which it had jurisdiction. Holmes was accused of publishing a book containing an obscene print that threatened to debauch and corrupt the morals of youth and other citizens of the commonwealth. Both Sharpless and Holmes relied on the Hicklin standard that gauged the harmfulness of obscene content on its likely effect on the vulnerable, such as youth, rather than on the population in general. By the nineteenth century, state legislatures began to pass laws to control the spread of obscene material, which had become more widely available. Contributing to the increased availability of obscene content were the diminished influence of the Church and increased access to public education, which increased literacy.
Prosecutions for obscenity remained rare, however, until after the Civil War, when reformer Anthony Comstock began his campaign to ban bawdy content. He created an extraordinarily influential organization called the New York Society for the Suppression of Vice. Comstock pushed Congress to pass federal legislation to control obscenity, and the result was the Comstock Act, passed in 1873, that prohibited the mailing of obscene publications. As a special agent of the Post Office, Comstock oversaw the destruction of hundreds of thousands of pieces of obscene material. Active enforcement of obscenity laws thus characterized late nineteenth-century America. Courts continued to rely on the Hicklin standard for obscenity, which focused on the effect of obscenity on the susceptible, rather than on the average person.
Developments in the Twentieth Century and Beyond
Most obscenity cases considered by the U.S. Supreme Court arose in the twentieth century for two key reasons. First, it was during the twentieth century that the media of mass communication burgeoned in the nation, increasing the channels through which obscene content was available. Second, this was the century in which the Supreme Court began to establish its First Amendment jurisprudence. Throughout these years, debate over the control of obscenity has arisen each time a new medium of communication has gained widespread use. The rationale for this Content-Based Regulation of Speech has continued to be obscenity’s presumed potential for inciting social disorder, crime, and juvenile delinquency.
From the start, the Court grappled with the definition of obscenity. It first discussed the matter in Winters v. New York in 1948, which arose from the sale of allegedly obscene magazines. In Winters, the Court struck down as too vague a state statute prohibiting the distribution of obscene material. Because it provided criminal penalties, the law needed to make clearer the type of conduct that violated the law.
Similarly, in Butler v. Michigan (1957), the Court deemed as too broad another state law restricting obscenity. The law criminalized the distribution of materials ‘‘tending to corrupt the morals of youth,’’ to anyone, including adults. The court said the law, which protected the ‘‘reading public against books not too rugged for grown men and women in order to shield juvenile innocence,’’ went too far. In a well-known statement, Justice Felix Frankfurter, writing for the court, stated: ‘‘Surely, this is to burn the house to roast the pig.’’ The Hicklin standard was thus found unconstitutional.
The court engaged in its first extended discussion of whether obscenity was unprotected speech under the First Amendment in Roth v. United States, decided in 1957, and held that it was not. Roth was a New York bookseller who mailed advertisements to attract sales. He was charged with mailing obscene advertising circulars as well as an obscene book, in violation of federal and state obscenity statutes. The court defined obscenity as ‘‘material which deals with sex in a manner appealing to prurient interest.’’ This definition left open the possibility of First Amendment protection for the portrayal of sex in art, literature, and scientific works.
These decisions were followed by the sexual revolution of the 1960s, a time in which social strictures over sexual activity were greatly relaxed. In previous decades, print materials had prompted obscenity prosecutions; at this time, film, which began to portray nudity, became the catalyst for prosecutions. Although the Court had previously considered movie censorship in Burstyn v. Wilson (1952) and held that the medium was protected by the First Amendment, the nature of the content was at issue in Jacobellis v. Ohio, decided in 1964. In this case, the Court held that a French film including an explicit love scene was an artistic work protected by the First Amendment. In a concurrence, Justice Potter Stewart mentioned the continuing difficulty of defining obscenity, but, in a well-known statement, wrote, ‘‘I know it when I see it.’’
Although the Court maintained that obscenity was outside the scope of First Amendment protection, it rejected the notion that mere possession of obscene material was a crime. Stanley v. Georgia (1969) arose from a police search of the home of a man accused of bookmaking. The search turned up several reels of film. Upon viewing the films, police deemed them obscene and seized them. The homeowner was convicted of possession of obscene material, but the Supreme Court overturned the conviction. ‘‘If the First Amendment means anything, it means that a State has no business telling a man, sitting along in his own house, what books he may read or what films he may watch,’’ stated Justice Thurgood Marshall. ‘‘Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.’’ Marshall wrote the opinion on behalf of a Court headed by Chief Justice Earl Warren. The Warren Court has been widely perceived as a liberal one that made unprecedented expansions of individual rights.
The Court tackled the problem of defining obscenity again in Miller v. California (1973), which stemmed from the mailing of sexually explicit advertising brochures. This time a more conservative Court led by Chief Justice Warren Burger made the decision. The Court expanded on the ideas in Roth and developed a three-part test for obscenity: (a) whether the average person, applying contemporary community standards, would deem the work as appealing to the prurient interest; (b) whether the work depicted sexual conduct, as defined by state law, in a patently offensive way; and (c) whether the work as a whole lacked serious literary, artistic, political, or scientific value. The Miller test continued as the standard at the start of the twenty-first century.
The Miller Court explicitly rejected the notion that the sexual revolution obviated the need for regulation of patently offensive, hard-core pornography. Rather, in a case decided that same year, Paris Adult Theatre I v. Slaton, the Burger Court recognized the state’s interest in regulating obscenity in places of public accommodation. The case arose from the screening of two sexually explicit films at an adult theater that restricted attendance to those twenty-one and older. The court said the theater’s efforts to limit exposure to the film to consenting adults were not enough to safeguard the quality of life in the community. Writing for the Court, Chief Justice Burger said there was ‘‘at least an arguable correlation between obscene material and crime.’’ It was not necessary, Burger said, for the state legislature to provide scientific data to demonstrate the adverse effects of obscenity on society. ‘‘From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions,’’ he wrote.
Another limit on sexually explicit material was drawn in New York v. Ferber, decided in 1982. The Court upheld a state criminal statute forbidding the promotion of sexual performances by children through the distribution of material depicting such performances. Child pornography is outside the scope of FirstAmendment protection, the Court stated, because protection of children is a legitimate state interest. Distribution of photographs and films depicting sexual abuse of children also exacerbate the abuse by making a permanent record of it, the Court said.
Conspicuously absent from the obscenity case law have been cases arising from the broadcast media. The reason is that freedom of speech in broadcasting has been restricted since Congress passed the Radio Act of 1927. The act was superseded by the Communications Act of 1934, but federal statutes maintained the government’s power to prohibit obscenity on the airwaves. The act created an independent agency, the Federal Communications Commission (FCC), that was responsible for Broadcast Regulation. The FCC also has regulatory power over television, cable, and telephones. Because of the statutory prohibition of obscenity on these media, questions about sexually explicit content have centered on indecency. In Federal Communications Commission v. Pacifica (1978), the Supreme Court held that the FCC had the power to regulate a radio broadcast that was indecent but not obscene. The broadcast in question was the ‘‘Filthy Words’’ monologue of humorist George Carlin, who repeated over and over a series of expletives that were banned from the airwaves. The FCC deemed the broadcast indecent rather than obscene because, as social satire, it was not lacking in serious political value. But government still had the right to regulate it because of the unique circumstances presented by a radio broadcast. The audience is constantly tuning in and out, the Court said, and children may be in the audience. The ‘‘uniquely pervasive presence’’ of the broadcast media makes them difficult for unwilling audience members to avoid, warranting additional control over their content, according to the Court.
The circumstances of communication continued to play a role as the Court dealt with the regulation of other electronic media. In Sable Communications of California v. Federal Communications Commission (1989), the Court struck down a federal ban on indecent commercial telephone messages, more commonly known as ‘‘Dial-a-Porn.’’ The FCC’s restrictions on callers, which required credit cards and access codes, were deemed sufficient to protect children from unsuitable messages. In United States v. Playboy Entertainment Group (2000), the Court found unconstitutional a provision in the Telecommunications Act of 1996 that placed severe restrictions on the transmission of sexually oriented programming over cable television. Cable operators were already using technological means to limit access to paying customers. The occasional technological failures that sometimes arose, exposing nonsubscribers to a sexual image now and then, did not warrant the law’s extensive restrictions.
As a new medium of communication, the Internet has been the focus of considerable legislation at the turn of the twenty-first century, with much attention being directed to control over content. Although federal law criminalizes obscenity, Congress sought to further restrict obscenity and the Internet with the Communications Decency Act. The act was part of the wide-ranging regulatory reform legislation known as the Telecommunications Act of 1996. The Communication Decency Act sought to protect children from ‘‘indecent’’ and ‘‘patently offensive’’ communications on the Internet by criminalizing the transmission of such content to them. The Court, however, held in Reno v. American Civil Liberties Union (1997) that the law abridged free speech protected by the First Amendment. As with so many other cases, the Court said that, in trying to protect children, the law suppressed a great deal of protected speech that adults had a constitutional right to receive and share. Similarly, the Court struck down provisions of the Child Pornography Prevention Act in Ashcroft v. Free Speech Coalition (2002), including a ban on virtual child pornography. This is sexually explicit imagery that appears to depict minors but was produced without using any real children, as might be done with computer technology.
Congress responded to the decision in Reno by passing the Child Online Protection Act. But again, the Court found the legislation was not the least restrictive means available for protecting children from harmful content on the Internet. In Ashcroft v. American Civil Liberties Union (2004), the court let stand a preliminary injunction preventing enforcement of the law due to its apparent conflict with the First Amendment.
The Court, did, however, uphold a statute requiring any public library receiving federal funds for Internet access to install software that blocks obscenity and to prevent minors from accessing harmful information. This type of condition is a legitimate part of Congress’s spending power, the Court stated in United States v. American Library Association (2003). Congress can require libraries to use funds for materials of appropriate quality, the court stated, upholding the Children’s Internet Protection Act.
In most cases, restrictions on speech, including sexually explicit speech, have been considered potential threats to the civil liberties of citizens. However, another important school of thought views pornography as a violation of the civil rights of women. A leading proponent of this viewpoint has been Catharine A. MacKinnon, a law professor and feminist. MacKinnon views pornography as harmful to women, and believes that women should be able to seek redress through civil legal action. From this perspective, the harm caused by pornography outweighs the interest in free speech. Control of pornography is thus seen not as a violation of First Amendment freedoms, but as supporting the civil rights of women.
KAREN M. MARKIN
References and Further Reading
- Hixson, Richard F. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois University Press, 1996.
- Kalven, Harry Jr. A Worthy Tradition: Freedom of Speech in America. New York: Harper & Row, 1988.
- MacKinnon, Catharine A. Women’s Lives, Men’s Laws. Cambridge, MA: Harvard University Press, 2005.
- Schauer, Frederick F. The Law of Obscenity. Washington, D.C.: Bureau of National Affairs, Inc., 1976.
Cases and Statutes Cited
- Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
- Burstyn v. Wilson, 343 U.S. 495 (1952)
- Butler v. Michigan, 352 U.S. 380 (1957)
- Child Online Protection Act of Oct. 21, 1998, 112 Stat. 2681 Child Pornography Prevention Act of 1996, 110 Stat. 3009 Children’s Internet Protection Act of 2001, 114 Stat. 2763 (2000)
- Commonwealth v. Holmes, 17 Mass. 336 (1921)
- Commonwealth v. Sharpless, 2 Serg. & Rawle 91; 1815 Pa. LEXIS 81
- Communications Act of 1934, 48 Stat. 1064
- Communications Decency Act of Feb. 8, 1996, 110 Stat. 133
- Comstock Act of 1873, 17 Stat. 599
- Federal Communications Commission v. Pacifica, 438 U.S. 726 (1978)
- Jacobellis v. Ohio, 378 U.S. 184 (1964)
- Miller v. California, 413 U.S. 15 (1973)
- New York v. Ferber, 458 U.S. 747 (1982)
- Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973)
- Radio Act of 1927, 44 Stat. 1162
- Regina v. Hicklin,  L.R. 3 Q.B. 360
- Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
- Roth v. United States, 354 U.S. 476 (1957)
- Sable Communications of California v. Federal Communications Commission, 492 U.S. 115 (1989)
- Stanley v. Georgia, 394 U.S. 557 (1969)
- Telecommunications Act of February 8, 1996, 110 Stat. 56 United States v. American Library Association, 539 U.S. 194 (2003)
- United States v. Playboy Entertainment Group, 529 U.S. 808 (2000)
- Winters v. New York, 333 U.S. 507 (1948)
See also Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); Burger, Warren E.; FCC v. Pacifica Foundation, 438 U.S. 726 (1978); Frankfurter, Felix; Jacobellis v. Ohio, 378 U.S. 184 (1964); MacKinnon, Catharine; Marshall, Thurgood; Miller v. California, 413 U.S. 15 (1973); New York v. Ferber, 458 U.S. 747 (1982); Obscenity; Paris Adult Theater v. Slaton, 413 U.S. 49 (1973); Regina v. Hicklin, L.R. 3 Q.B. 360 (1868); Reno v. ACLU, 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. Playboy Entertainment Group, 529 U.S. 803 (2000); Warren, Earl