A Prurient Interest in Obscenity?
To what extent does the First Amendment protect obscenity (i.e. pornography). What is pornography and what is artistic expression? Learn all about this titillating subject on this episode of DJM.
Laura: Welcome to Sidebar, the bite-sized episodes of FindLaw's Don't Judge Me. I'm Laura and I'm joined by Andy.
Vaidehi: Who's singing that?
Laura: I like it. I was just going to say I can't, well, hold on I got to introduce Vaidehi as well.
Vaidehi: Yes, hello.
Laura: We're doing a really good job with our intros lately. I feel like we're really nailing it. Been little loosey-goosey which speaking of loosey-goosey, well, in case you're like me and couldn't quite tell whether Andy was just doing his Seinfeld-
Andy: No, that's different.
Laura: -theme impression again.
Andy: It's different.
Laura: I know, or whether that was [chuckles] the music that you would hear in certain types of adult films, I tease this a little bit last week I said that we were going to talk about pornography. Here we are, we're going to talk about it, I'm very excited. It's always fun to talk about a topic that's-- I don't know, this one's apparently controversial too. It turns out there are people out there who reportedly want to ban porn like JD Vance, apparently, although he actually hasn't been elected to anything so I'm not going to waste my time on him.
In 2016, for example, the Republican Party declared internet pornography to be a public health crisis.
Laura: We've got Senator Josh Hawley, who has a bit of a crusade against porn and video games too. I guess he blames feminism. You know what, I don't have time for him either.
Andy: He's got some interesting thoughts on masculinity. That's for sure.
Vaidehi: We have a disproportionate amount of Yale Law graduates that are prosecuting porn. JD Vance, Josh Hawley.
Laura: Over the years Congress has also attempted to regulate online pornography which I'll get into later. I'm here to tell you, dear listener, that porn is probably not going anywhere anytime soon thanks to our old pal, the First Amendment.
Andy: Yes, big ups for 1A
Vaidehi: First Amendment is like everybody's friend. You can just use it no matter who you are. [crosstalk]
Laura: Yes, absolutely, it's great. You might be saying, "Laura, are you trying to tell me that porn is protected by the First Amendment?" For the most part, yes it is.
Andy: Sorry, mom.
Vaidehi: Hopefully. It depends on how old you are. When you call your mom, your mom, it might not be protected for you.
Laura: [chuckles] There are two categories that do not receive First Amendment protection and thus their sale or distribution is illegal. The first is child pornography which is pretty straightforward, easy to see the social rationale there. The second category is a little more complicated and that is obscenity which is probably one of the most confusing concepts in constitutional law with no settled definition that applies to a very narrow category of pornography. We're not talking about all sexually explicit materials here.
The fact that a film or a book or whatever arouses people doesn't matter. It's likely going to be protected by the First Amendment. The Supreme Court has struggled for literally decades to try to figure it out. They say, "Okay, we know that there's some stuff that we don't want to give First Amendment protection to but we're not exactly sure how to define it." In 1964, Justice Potter Stewart wrote that the court was faced with the task of trying to define what may be indefinable but he more famously is the one who said, "I know it when I see it." [chuckles]
Vaidehi: As referring to obscenity?
Laura: Yes. He said, "I don't know how to define obscenity but I know it when I see it." Then you also have justice John Marshall Harlan who once noted that one man's vulgarity is another person's lyric which is something that I ran into recently. I'm going to share a story, this is not about obscenity it's more about being vulgar I guess. I own a t-shirt that says, "Fudge racism," except it doesn't say fudge [chuckles] along with several middle fingers on it. I love it, I love this shirt. I was out walking around recently and I had a neighbor call me out and she said, "Shame on you." I said, "It's kind of hard to argue with though, right?" Then she walked away from me.
Laura: [laughs] It's one of those things where it's like, "Well--
Vaidehi: Because that's your right and she can't do anything about it.
Laura: We could get into do you disagree with the concept or the way I'm conveying it because those are two different--?
Andy: Is that all she said was shame on you and then walked away?
Laura: Yes, that's it.
Andy: Ma'am you're going to have to defend your shame on you comment.
Laura: Exactly. I was like, "Are you referring to my stance on racism or the way I'm saying it?" In the early years, the Supreme Court borrowed a definition from an old British case called Regina v. Hicklin in 1868.
Vaidehi: I know it's not dirty guys, it's name queen.
Laura: I said, Regina.
Vaidehi: R-E, Regina the queen.
Laura: I knew you were going to laugh at that though.
Vaidehi: It's a wrong queen episode, come Andy.
Laura: [laughs] That case defined obscenity as something that has a tendency to deprave and corrupt those whose minds are open to such immoral influences.
Andy: Oh, apparently.
Vaidehi: Like Andy apparently. Get your mind out of the gutter.
Laura: The Supreme Court created a new test for obscenity in 1957 in Roth v. United States where they held that what matters is whether to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest, which is a concept that even in law school couldn't quite figure out what anybody means by that. That's another layer to this because nobody really seems to know what exactly prurient means.
Vaidehi: It sounds prudish, right? That's how the word resonates in my mind.
Laura: Merriam-Webster defines it as marked by or arousing an immoderate or unwholesome interest or desire. As a legal standard, the best definition I've been able to find is that it's often meant as a morbid degrading or excessive interest in sexual conduct as opposed to a passing "normal interest in sex or sexual material."
Vaidehi: Oh, it's just so subjective and hard to define I guess.
Laura: It is, and that's the issue in all of this. The Supreme Court tried to refine that test throughout the '60s and '70s adding requirements that something has to be patently offensive or lacking social value in order for it to lose First Amendment protection. Interestingly, this came up in a case that I discussed last week when we were talking about book banning where in that case, the Supreme Court-
Vaidehi: Donna Cleveland?
Laura: [laughs] And Pico.
Vaidehi: Owen Pico.
Laura: There, the court established that school officials can't ban books that they don't agree with but that doesn't mean that they can't be pulled for being obscene. They have to, again, take these community standards into account.
Vaidehi: I was just going to add I remember one case after the Roth case that established community standards, another case Jacobellis v. Ohio established that this clarified a little bit that these community standards aren't what they might sound like, they're not all local to the community but they're national. They are trying to universalize these standards because one community could in theory be a lot more conservative than another but that's not what they mean allegedly when they talk about community standards. They mean a more universal standard.
Laura: That's another thing that the Supreme Court has tried to refine over the years especially once we start getting into cases that came up after the advent of the Internet, then they start to say, "Okay, now we really do have to focus on a national standard because otherwise, it's going to be far too broad." Then we get to Miller v. California in 1973 which is basically the test that we still use.
When we're trying to figure out if something is obscene to the point that it loses First Amendment protection, we have to ask whether the average person applying those contemporary social standards would find a book or film or whatever, appeals to that prurient interest. Which is also just a very hard word to say, so I take issue with that too.
Vaidehi: Prurient like we're adjourned.
Laura: I feel like I'm getting further away from it. Prurient.
Laura: There we go.
Laura: It has to depict or describe sexual conduct in a patently offensive way and it must lack "serious literary, artistic, political, or scientific value." The problem with Miller, critics point out and you touched on this Vaidehi is that a work could be found obscene in one community but acceptable in another.
Vaidehi: Miller rejected that previous standard of national. Miller reestablished that it could be more locally based.
Laura: Yes but the dissenting justices were in the background saying, "Okay, this is probably not going to work." Going forward, in general, individuals can't be convicted of obscenity charges unless the materials depict patently offensive hardcore sexual conduct. Again, justice Brennan, who wrote the opinion in Pico the book manning case, that I talked about last episode, he argues that obscenity laws were too vague and just, in general, couldn't be applied without jeopardizing fundamental First Amendment values. Then on top of this, there's no way that any of these guys could have predicted the internet.
Andy: Has there ever been an actual, legal definition for the terms soft core and hard?
Laura: No not really. I would categorize obscenity as probably the most debated and confusing part of First Amendment jurisprudence. There's just never really been a good definition of it or a definition that makes sense. I think that the Supreme Court in general has been very, I don't know. I don't know if they've been weary to create one because the First Amendment is so important and so we don't want to come up with something that's too broad. Like we were talking about earlier, different people in different communities are going to have a different idea of what is patently offensive, what is hardcore, what is softcore.
Then we add in the additional challenge of the internet where applying those community standards tests is nearly impossible because the internet makes the potential community the whole world.
Viadehi: Again, Miller reestablished that basically, you can't expect the people of Maine and Mississippi to have the same community standards as New York City. States are allowed to base it on their own local community standards. Enter internet, now it's moot. Anyone can access anything.
Andy: To the chagrin of K regulators where pornography was illegal until I don't know [crostalk] or something.
Viadehi: Which is hilarious because they can say any cuss word on air at the same time.
Laura: That's very true. That's something that is interesting when it comes to how the Supreme Court has approached internet issues because like in Reno v. the ACLU in 1997, this was a unanimous decision that struck down provisions of the Communications Decency Act. That was the one that criminalized "indecency" on the internet. First of all, the Supreme Court was like, "That is just way too broad. You can't just say indecency and not--"
Something else interesting in that case is that it established that speech on the internet is entitled to the same high level of protection that we see given to print media, as opposed to the slightly lower protection we see to broadcast media because we can't be saying, I don't even know what. What can we not say on TV anymore? I know a lot of the curse words have been brought in.
Andy: Can't say [inaudible 00:12:41] on network TV.
Laura: Or on the radio, so we're going to have to bleep that out. It was something interesting because internet users usually know what they're getting into before they click on something and it's possible to implement parental controls and things like that. The Supreme Court said we're going to give the internet the same protection that we do with print media because people can, I guess more easily steer away from it if they're not into it. [chuckles]
Viadehi: You mentioned The Communications Decency Act, Laura y'all might have heard about this act and specifically a section that is pretty famous in recent years.
Andy: Oh no. Don't say it again. No, don't say it.
Laura: Section 230.
Viadehi: 230 C1.
Viadehi: Oh no. I broke Andy. Basically, if y'all might have heard of section 230 of the Communications Decency Act and it generally provides immunity for websites that host third-party content. If they are just a platform maybe backpage.com which went-- just hypothetically. They are supposed to have protection from whatever happens or is said amongst its users, but clearly, that doesn't always work out.
Laura: That's very true.
Viadehi: One distinction I wanted to make was that obviously, I hope this is obvious, child pornography is not legal y'all. New York v. Ferber established in 1982 that child pornography has no free screech protection and therefore states can make laws criminalizing it. It's really what that means, but that is not to be confused with children in possession of pornography or selling porn to children, which is a separate case Ginsburg v. New York. Children have no right to porn the same way that adults do or children do not have the same rights to porn as adults do.
States can treat children under 17 I think in that case, depends on the age of majority in your state, but states can have different laws for regulating pornography or obscenity to children than adults without violating necessarily First Amendment principles.
Laura: That's similar to a case that I believe the Supreme Court had to deal with twice Ashcroft v. the ACLU. When it first came up in 2002, they punted on it. This was a challenge to the Child Online Protection Act, which aimed to prevent minors from accessing pornography online. It was challenged for being overbroad. The Supreme Court at first, they just said-- these community standards provision where the Third Circuit Court of Appeals, the lower court found that prohibited material, that "puritanical" communities would find objectionable, but others would probably not.
They found it was too broad and the Supreme Court said, ''Probably, but that by itself, doesn't invalidate this law," and they sent it back to the Court of Appeals. On the second go around, the Supreme Court did finally say, "This is overbroad." It's one of the more interesting five to four splits I've ever seen where we had justices Kennedy, Stevens, Souter, Thomas, and Ginsburg on the same side. They help the Congress had not done enough to show that the law was the least restrictive way to prevent kids from unwittingly consuming pornography.
Then you had Rehnquist, Scalia, Breyer, and O'Connor on the same side, arguing that the existence of filtering software and things like that were not an alternative legislative approach, but rather just part of the backdrop that Congress was trying to regulate in. Something interesting that justice Kennedy wrote that applying the local community standards, he argued, could just lead to a huge amount of protected speech being oppressed. He put it really well. He said a web publisher in a community where, I love this, Avant guard culture is the norm [chuckles] may have no desire to reach a national market.
He might only want to speak to his neighbors, but nevertheless, if an eavesdropper in a more traditional rural community chooses to listen in, there is nothing a publisher can do. That I think sums up really well why this is such a really nebulous thing when it comes to the internet is like, that's why I'm here to tell you that [chuckles] online pornography is probably not going anywhere because it's just far too hard for Congress to try to regulate around it, and further to be a standard.
Viadehi: To have a national standard.
Laura: Yes. All of that to say that I think there are quite a few First Amendment scholars out there who argue that obscenity law is obsolete because we don't really see federal prosecutions for obscenity anymore, but--
Viadehi: Only child trafficking and pornography, all that stuff, which is good.
Laura: It is important to note that states continue to criminalize or punish sexually explicit speech in various ways. Even though a national ban on pornography is unlikely, it is important to keep an eye on those state houses if this is an issue that you're interested in. Thanks for listening to Sidebar, from FindLaw's Don't Judge Me. We'll be releasing these every other week between our full-length episodes. Please subscribe to, rate, and review our show wherever you listen to podcasts. If there's a topic you'd like to hear us cover, send us an email at email@example.com.