Material containing explicit displays of sexual organs or activity, intended to stimulate erotic feelings.

While both pornography and obscenity are commonly considered indecent material, pornography is not synonymous with obscenity. The key legal distinction between the two is that pornographic materials are protected under the freedom of speech clause of the First Amendment, while obscene materials are not. The First Amendment protects pornographic writings, photographs, and movies displaying sexual activity or eroticism that is intended to arouse sexual excitement. The First Amendment does not protect obscenity, however, and the sexual depictions they convey.

In fact, the Supreme Court has consistently held that obscenity and obscene speech is one of the few types of speech not entitled to constitutional protection under the First Amendment: Miller v. California, 413 U.S. 15, 24 (1973); Alliance for Community Media v. FCC, 56 F.3d 105, 113 (D.C. Cir. 1995). Obscenity, under the Miller Supreme Court test, is defined as material, when taken as a whole, which the average person, applying contemporary community standards, would find as appealing to the prurient interests and lacking serious educational or artistic value (Sable Comm. of California, Inc. v. FCC, 492 U.S. 115 (1989); Paris Adult Theatre v. Salon, 413 U.S. 49, 69 (1973); Alliance for Community Media).

Despite the fact that both have sexual content, obscenity differs from pornography (or indecency) because “language or material that, in context, depicts or describes, in terms patently offensive, as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.”

In distinguishing between pornography and obscenity, Judge Patricia Wald said that pornography (or indecent material) “is not confined merely to material that borders on obscenity—obscenity lite.” Unlike obscenity, indecent material includes literarily, artistically, scientifically, and politically meritorious material. Pornography, by definition, includes all “patently offensive” material deemed to have any of these types of “merit.” Therefore, such material is not obscene under the Supreme Court's Miller standard. See, for example, Alliance for Community Media, 56 F.3d at 130 (Wald, J., dissenting).

Because pornography is protected under the First Amendment, any government regulation of pornography must be by the least restrictive means possible to further a compelling government interest. The regulation must “do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms” (Sable, at 126).

The Supreme Court's obscenity test has evolved over the years. It is intended to determine whether certain materials involving sexual conduct as forms of expression and speech were entitled to the Constitution's protection for free speech. Notwithstanding, the Supreme Court has had considerable difficulty in formulating and applying specific standards in deciding obscenity cases.

The Supreme Court, in Roth v. United States, 354 U.S. 476 (1957), held that obscenity is not constitutionally protected speech and articulated a test that has since been overruled: Material is deemed obscene if, as a whole, its predominant appeal is to the prurient interest (a shameful or morbid interest in nudity, sex, or excretion) and if it goes substantially beyond the customary sensible limits on the description or representation of the matter. In articulating this test, the Court adamantly rejected the argument that the First Amendment protected obscene speech. The Court consequently upheld the defendant's conviction under the federal statute that prohibited individuals from engagin in the unsolicited sending of obscene, lewd, or lascivious circulars or advertising. Because the obscene circulars and advertising depicted individuals engaging in sexual activities that were sent to solicit sales from unwilling recipients of such advertising and depicted individuals engaging in sexual activities and were intended to appeal to a shameful or morbid interest in nudity, sex or excretion that went substantially beyond the customary sensible limits in their description and representation.”

A plurality of the justices in Memoirs v. Attorney General of Massachusetts, 383 U.S. 413 (1966), added a new prong to the Roth obscenity test: “when considered as a whole, the work must be utterly without any redeeming social value to be considered obscene and, accordingly not constitutionally protected.” The Court held that the published memoir was protected speech, regardless of whether it appealed to the prurient interest and was patently offensive, because it had some redeeming value.

Using the obscenity test that had been rejected in Roth, the Court, in Jacobellus v. Ohio, 378 U.S. 184 (1964), held that an explicit love scene during the last reel of the film in the case was not hardcore pornography because it was so fragmented and fleeting that the audience would have to be explicitly informed that some offensive behavior would occur. Also, the Court held that the film was not without redeeming social value because it received favorable reviews in various national publications.

The Court, in Stanley v. Georgia, 394 U.S. 557 (1969), unanimously held that, while the First Amendment does not protect obscenity, the government may not punish the mere private possession of obscene material. The Court held that the First Amendment protected a person's right to possess and view pornography in his own home. Justice Thurgood Marshall wrote, “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.” The Court added, however, that the government can still ban the public distribution of such material.

Although obscene material is speech that is not protected by the Constitution, pornography that merely depicts is not necessarily obscene and therefore may have First Amendment protection. In Jenkins v. Georgia, 418 U.S. 153 (1974), the Court held that a movie containing scenes of sexual conduct did not appeal to the prurient interest, that it did not constitute patently offensive material, but that it did have social value. The film at issue in Jenkins did not visibly display genitalia, the bodies of the actors were not emphasized in the cinematography, and neither the entire film nor the focal points of the movie consisted of sexually explicit scenes.

In Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), the Supreme Court invalidated a city ordinance forbidding drive-in theaters from showing films depicting nudity because the ordinance overinclusively targeted films solely on the basis of nudity. The Court did not analyze the movie under the Miller obscenity standard but instead based its decision on the concept that, absent an unacceptable invasion of substantial privacy interests, the government may not stop speech or expression exclusively to protect others from hearing or seeing it. Thus, when not considered obscene, the government may not halt speech or expression exclusively to protect others from hearing or seeing it, and when a work is not deemed obscene under the Miller standards, mere nudity as a form of pornography remains constitutionally protected speech.

The Court, in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), invalidated Section 5 of the Communications Decency Act, 110 Stat. 133 (1996), a key anti-indecency provision of the act, as an overboard suppression of speech, but upheld Section 230, which granted legal immunity for Internet service providers (ISPs). The Court, in striking down Section 5, held that private filtering options offered an alternative to a state prohibition on indecent speech.

In Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), however, the Court upheld a statute that sought to restrict minors' access to obscene materials on the Internet. The Court declared that, because community standards are used to determine obscene materials under the Miller obscenity test, a publisher sending obscene materials to a specific community through the Internet must comply with the contemporary standards of that community. Although certain forms of Internet pornography is protected free speech, revenge pornography is often deemed as obscene and can often be restricted.

In Nitke v. Gonzales, 413 F.Supp. 2d 262 (S.D.N.Y., 2005), a New York federal district court held that the right to free speech, including certain forms of pornography, applies to Internet speech. Obscenity laws nonetheless apply in cases involving the Internet. The types of pornography involved in that case were all fairly unusual sexual activities, including sadomasochism.

Revenge pornography

Revenge pornography entails the posting and distribution of intimate, nude, and sexually erotic photographs of an individual on the Internet without that person's consent. As an especially extreme type of indecent speech, revenge pornography should be found obscene, under the Miller obscenity test.

Although revenge pornography websites are generally visited by willing viewers, each displayed individual is an unwilling target in the public distribution of this material when he or she did not give permission to such distribution. Similar to the advertisements in Miller, the victim of revenge pornography is depicted as nude and in a sexually erotic position or engaging in sexual activity with his or her genitals or breasts exposed. Cases of revenge pornography differ from Jenkins v. Georgia, where the Supreme Court held that the depictions of sexual conduct in the film, in that case, did not appeal to the prurient interests because there was no genitalia visible, and the camera did not focus on the actors' bodies during the sex scenes. Consensual and artistic nudity alone does not make material with such sexual conduct obscenity under Miller.

Sexually explicit photographs, however, posted for vengeful or spiteful purposes, such as revenge pornography, use the sexual aspect of the images to embarrass or harass the displayed individual. Therefore, revenge pornography is a far different act than a depiction of mere nudity. The sexually explicit photographs of nude individuals used in revenge pornography are used, then, for a far different purpose than the artistic endeavor of the film in Jenkins. The dissemination of revenge pornography over the Internet is principally used to exact revenge and view the victim for warped sexual gratification.

Revenge pornography has no constitutional protection, so Congress and the state legislatures should enact legislation to deter revenge pornography and protect the victims of these acts. The courts could either hold revenge pornography to be obscene or apply tort remedies to address revenge pornography's grave and repugnant breaches of morality and the privacy rights of the victim.

Child pornography

Child pornography is a thriving and technologically advanced industry. The Internet makes child pornography readily accessible, and the computer enables thousands of people throughout the world to communicate with each other while maintaining the secrecy and covert nature of underground networks. For all these reasons, the Internet emerged as the primary means of distributing child pornography.

The state has a compelling interest in eliminating child pornography because it involves the sexual exploitation of a defenseless group of people. The Court, in Jacobsen v. United States, 503 U.S. 540 (1992), acknowledged the seriousness of the issue when it stated that “there can be no dispute about the evils of child pornography or the difficulties that the laws and law enforcement have encountered in eliminating it.”

Child pornography is often referred to as child abuse because it depicts a child engaged some sexual activity. This activity may involve other children or adults. Child pornography, as abuse, can damage and haunt the child for years. Also, child abusers use child pornography to lure children to engage in sexual activity. The abuser manipulates the child into believing that sexual activity is acceptable because the children shown in pictures are engaged in such acts. Pedophiles also use technology to transmit and receive child pornography anonymously. For all these reasons, legislation has been promoted to fight child pornography.

Many privacy organizations, such as the American Civil Liberties Union (ACLU), EPIC, and CDT, have successfully challenged the constitutionality of legislation restricting Internet speech deemed as harmful to minors by arguing that the availability of self-help alternatives meant that each such statute could not be considered the “least restrictive means” of regulating constitutionally protected speech. With this argument, they opposed the Communications Decency Act of 1996; the Child Online Protection Act (COPA), codified as 47 U.S.C. 231 (COPA should not be confused with the Children's Online Privacy Protection Act of 1998 (COPPA), 129 Stat. 437 and state laws that fulfill purposes similar to COPA. The ACLU and EPIC argued that the user-based filtering software could be used if parents wished to restrict what their children viewed.

Further Reading

See also: Children's Online Privacy Protection Act (COPPA); First Amendment to the U.S. Constitution; Obscenity; Stanley v. Jackson; Supreme Court of the Untied States