Civil Rights

Free Speech: What Is Obscenity, and Which Community Standards Apply?

By E.A. Gjelten, Author and Editor
The First Amendment doesn’t protect pornography that meets the legal standards for obscenity, but Internet porn has complicated those standards.

The right to freedom of expression isn’t absolute. The U.S. Supreme Court has long said that the First Amendment doesn’t protect certain kinds of harmful speech. Sometimes that includes pornography, but sometimes not.

Pornography in All Its Forms

Pornography includes books, pictures, live performance, films, or videos that show or deal with sex and are primarily meant to arouse sexual desire. But as most people recognize, that can run the gamut from mildly titillating erotica to hard-core, violent porn. The Supreme Court has also recognized that porn deserves different treatment under the law, depending on where it falls on that spectrum, who’s reading or looking at it, and whether it shows children involved in sex. (For more details, see our articles about child pornography and partial First Amendment protection for porn that’s not obscene.)

No Free Speech Rights for Obscenity

The First Amendment doesn’t protect speech and other forms of expression that are obscene. Under the Supreme Court’s guidelines, material is obscene if:

  • it shows or describes sexual acts in a clearly offensive way
  • the average person would consider it lewd (or appealing to “the prurient interest in sex,” in the Court’s words), based on contemporary community standards, and
  • taken as a whole, the work doesn’t have any serious literary, artistic, scientific, or political value.

(Miller v. California, 413 U.S. 15 (1973).)

Obscenity in Private

States and cities can and do make it a crime to show or distribute obscene material. Sill, adults have the right under the First Amendment to have or look at obscenity in the privacy of their homes (Stanley v. Georgia, 394 U.S. 557 (1969)). But this private use exception doesn’t apply to child pornography or viewing obscene material online (18 U.S.C. § 1462).

Community Standards and Online Obscenity

In Miller, the Supreme Court said that it wasn’t realistic or constitutional to apply the same standards for obscenity to places as different as Mississippi or Las Vegas. But that was in 1973. How does the advent of online porn affect the Miller rule? When bulk “XXX” emails are sent from somewhere in Eastern Europe to recipients all over the U.S., or Internet porn is available almost everywhere, how do prosecutors and juries decide which community standards to use? As legal observers have pointed out, it’s basically impossible to target (or avoid) particular geographical areas when sending material over the Internet. But if prosecutors in a conservative area charge online pornographers with an obscenity crime, the jury may apply that community’s strict attitudes toward sexually explicit material—and those attitudes will govern what viewers in more tolerant regions can see. That was precisely the problem that the Miller court tried to address with the community-standards rule.

One federal appellate court has concluded that when it comes to pornography that’s shown online or sent by email, a national community standard should be used to decide whether the material is obscene (United States v. Kilbride, 584 F.3d 1240 (9th Cir. 2009)). But other courts have disagreed. So until the Supreme Court directly weighs in on this question, the standard for obscenity transmitted over the Internet may depend on where criminal charges are brought.

Questions for Your Lawyer

  • My ex posted nude pictures of me online after I broke up with him. Even though I let him take the pictures when we were together, I definitely didn’t agree to his spreading them all over the Internet, along with my name and other personal information. Is “revenge porn” a crime in my state? Can I sue my ex? What about the websites that ignored my requests to take the posts down?
  • I regularly watch porn online. Can I be charged with a crime if law enforcement says it’s obscene? How am I supposed to know when what I’m watching crosses the line?
  • I operate a website offering pay-per-view porn that’s pretty tame by the standards in most large urban areas. Is there any way I can protect myself from an overeager prosecutor in a conservative rural county who wants to go after me for purveying obscenity?

Go to main FAQ page on the First Amendment and free speech.

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