Civil Rights

Free Speech: When Can Government Regulate Porn That's Not Obscene?

By E.A. Gjelten, Author and Editor
Pornography or sexual material may face restrictions, even if it’s not obscene or child porn, if kids may be watching or government claims it harms the community.

The right to freedom of expression doesn’t include child pornography or anything that meets the legal standards for obscenity. Not all adult porn or sexual material is obscene. But even if it’s not, the U.S. Supreme Court has said that in certain circumstances, government may put some restrictions on “indecent” material—including films, videos, erotic dancing, books, television, and radio—without violating the First Amendment.

Not for Children’s Eyes

States may make it a crime to sell or distribute sexual material to minors that would be harmful to them, even if it wouldn’t be considered obscene for adults. As the Supreme Court explained, government has a responsibility to protect children’s welfare. And what’s obscene for kids isn’t necessarily the same as what’s obscene for adults. (Ginsberg v. New York, 390 U.S. 629 (1968).)

Based on the principle of harm to kids, the Supreme Court also upheld a federal law that requires public and school libraries to use Internet filtering software to block pornographic images, as a condition for receiving federal funds. As some of the Justices pointed out, the law didn’t violate the free speech rights of adult patrons at public libraries, because it allowed librarians to give adults unblocked access to computers on request. (United States v. American Library Assn., Inc., 539 U.S. 194 (2003).)

Broadcast Media

The Federal Communications Commission (FCC) may regulate language and images on broadcast TV and radio that would be protected under the First Amendment if they were on cable TV, the Internet, another medium that requires viewers or listeners to choose the content actively.

Regulating the Side Effects of Porn

In several cases, the Supreme Court has given local governments a First Amendment loophole for regulating businesses that sell porn or show erotic dancing. Government officials may restrict “adult” businesses if they claim the primary motivation is simply to limit the harmful secondary effects of their presence—like increased crime or lower property values—rather than censorship. Most of these cases involved zoning ordinances, but the Court also upheld a complete ban on public nudity in an entire city with the same justification (City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)).

Questions for Your Lawyer

  • I have a “gentlemen’s club” that features nude dancing but caters to a very upscale and discreet clientele. The city has passed so many geographical restrictions on adult businesses (can’t be close to schools, parks, libraries, churches, etc.) that it’s basically impossible to find a place where I can relocate. Can I force them to prove that my club hurts the neighborhood before they essentially put me out of business?
  • Can I be charged with a crime for using nasty, sexually explicit language to insult the President on my podcast?
  • My high school library uses filtering software that blocks access to pro-gay websites but not anti-gay sites. Can I get them to disable or change the software because it violates my First Amendment rights?
Go to main FAQ page on the First Amendment and free speech.
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