PORNOGRAPHY AND THE FIRST AMENDMENT

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

—The First Amendment to the U.S. Constitution

Parents often wonder why content they feel is pornographic isn’t outlawed—simply wiped off the face of the Internet. It’s not that easy. A great deal of such material originates in foreign countries, where U.S. law doesn’t carry much force. Furthermore, the display of some sexually explicit material is constitutionally protected. So how does the concept of “pornography” square with the First Amendment?

Sexually Explicit Content Meets the Supreme Court
Like parents, politicians, educators, and other concerned adults, the U.S. Supreme Court has struggled to establish the right balance between free-speech protection and laws enacted to curtail the spread of pornography. The following decisions represent landmark rulings on what type of sexually explicit material is and isn’t protected:

Ginsberg v. New York
Miller v. California
New York v. Ferber

Ginsberg v. New York:
In 1968 the Supreme Court held that the government can constitutionally prohibit children from accessing certain types of sexually explicit material that it can’t constitutionally ban for adults. It also noted, per Butler v. Michigan (1957), that the government can’t “reduce the adult population…to reading only what is fit for children.”

What does this mean?
This case dealt with the issue of “variable obscenity” and whether a minor had a constitutional right to the same content as an adult. The Supreme Court ruled that the government is entitled to restrict children’s access to certain kinds of sexually explicit material, even if the material isn’t obscene or illegal for adults. The challenge of the Internet is that it’s difficult to distinguish adults from children for purposes of restricting content.

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Miller v. California:
This 1973 case established that material can be judged obscene if, taken as a whole and judged by community standards, it appeals to the “prurient interest” in sex, depicts sexual conduct in a patently offensive manner, and lacks serious literary, artistic, political, and scientific value.

What does this mean?
Because a “variable tolerance” exists for explicit material, the Supreme Court left it up to communities to decide what they felt was obscene or indecent. If material is found to be obscene in this manner, it enjoys no First Amendment protection and the government can restrict its availability to everyone. The challenge that the boundary-free Internet poses is that distribution of content can’t be limited community by community.

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New York v. Ferber:
This 1982 case upheld the constitutionality of a state statute that prohibited anyone from knowingly producing, promoting, directing, exhibiting, or selling any material showing a “sexual performance” by a child under the age of 16. It defined sexual performance as any performance that included “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.” The case also established that child pornography doesn’t have to meet all of the requirements of the Miller test.

What does this mean?
As with obscenity, child pornography enjoys no First Amendment protection and the government can restrict its availability to everyone. In the case of electronic or computer transmission, it’s a federal offense to knowingly receive child pornography.

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