Obscenity

Obscenity is the only type of speech to which the Supreme Court has denied First Amendment protection without regard to whether it is harmful to individuals. According to the Court, there is evidence that, at the time of the adoption of the First Amendment, obscenity “was outside the protection intended for speech and press.” Consequently, obscenity may be banned simply because a legislature concludes that banning it protects “the social interest in order and morality.” No actual harm, let alone compelling governmental interest, need be shown in order to ban it.

Obscenity is not synonymous with pornography, as most pornography is not legally obscene; i.e., most pornography is protected by the First Amendment. To be obscene, pornography must, at a minimum, “depict or describe patently offensive ‘hard core’ sexual conduct.” The Supreme Court has created a three-part test, known as the Miller test, to determine whether a work is obscene.

The Miller test asks: (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; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The Supreme Court has clarified that only “the first and second prongs of the Miller test &mdash; appeal to prurient interest and patent offensiveness &mdash; are issues of fact for the jury to determine applying contemporary community standards.” As for the third prong, “[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.”

The Supreme Court has allowed one exception to the rule that obscenity is not protected by the First Amendment: one has a constitutional right to possess obscene material “in the privacy of his own home.” However, there is no constitutional right to provide obscene material for private use or even to acquire it for private use.

Catergory:First Amendment