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Pornography, obscenity, and the law aren’t strangers. For decades, the US courts have struggled with how the law should treat materials that may be offensive to the general public. The First Amendment to the US Constitution protects many things, including the all-important freedom of speech or expression. It let’s us voice our opinions and read and write whatever we choose.
The First Amendment also covers pornography, so, generally, adults can own it, look at it, and even make or publish it. Not all forms of pornography are covered, though. Specifically, the First Amendment doesn’t protect:
- Obscenity, or
- Child pornography
Pornography is sex-related material – like a movie or picture – designed to sexually arouse the person looking at it. Whether you’ve ever actually owned it or looked at it, just about everyone has heard of things like pornographic movies and “porno magazines,” which typically show men and women in the nude.
Not all pornography is illegal, and that’s why you may see some of these materials for sale in various retail outlets. Pornography is a way for some adults to express themselves, make a living or find entertainment. These people are free to buy it and own it, businesses are free to make, publish and sell it and adults are free to participate in it in exchange for a paycheck.
Crossing the Line
Pornography loses its First Amendment protections, however, when it becomes obscene or it involves children. At this point, federal and state laws make it illegal to make, sell, own and even look at some of this material. Anyone violating these laws may be fined, sent to jail or both.
Generally, obscenity is sex-related material that goes beyond mere nudity. As the US Supreme Court said over 30 years ago, “nudity alone is not enough to make material legally obscene.” The basic test used to determine if something is obscene asks:
- Whether the average person, applying today’s community standards, would find that the work, taken as a whole, appeals to the prurient or sexual interest
- Whether the work shows or describes, in a clearly offensive way, sexual conduct, as defined by the laws of the state where the materials are located
- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value
In simple terms, it’s not obscenity unless is shows “hard core” sexual conduct that’s clearly and plainly offensive (also called “patently” offensive). There’s no national standard or rule about what’s obscene and what’s not. It’s up to you and other members of your community to determine that.
What you and your neighbors consider obscene may not be so to people in another state or city. Often, your elected officials – like the state legislature, mayor or prosecuting attorney – may identify something obscene and try to have it removed from your area.
Child Pornography and Exploitation
Child pornography aims to stop the abuse and exploitation of children. The laws are stricter than ordinary obscenity laws. There are no “tests” or exceptions, and “community standards” aren’t involved. If the pornography involves children, it’s illegal, plain and simple.
Under federal law, child pornography or “kiddy porn” generally is any photograph, film or computer-generated image that shows a minor (someone under 18 years old) engaging in “sexually explicit conduct.” The law gives numerous examples of what qualifies as sexually explicit conduct.
It’s a federal crime to have, make, sell or distribute, or look at child pornography (if by looking at it you wanted to be sexually aroused). In other words, it’s unlikely that someone would be prosecuted for accidentally finding and viewing a child pornographic picture while surfing the web.
In addition, anyone charged with having or distributing child pornography has to prove that the materials in their possession were not made with and do not show real children. It’s also a crime to offer to sell, trade or buy child pornography.
Every state and the District of Columbia have laws making it a crime to have, make, sell or distribute, or look at child pornography.
Questions for Your Attorney
- My girlfriend and I are both 17. Is it illegal for me to have a nude picture of her on my cell phone or computer? Does it matter who took the picture?
- My child told me that his teacher was looking at some inappropriate pictures on the computer. What should I do?
- I want to sell some “men’s magazines” in my convenience store, but a city official said that I wasn’t allowed to sell any pornography within the city limits. Can the city do that?