>>When we discussed the development of our
modern free speech rights in our last section,
we saw that by the 1960's the Court had developed
a two-level understanding to free speech:
strict scrutiny for political speech on the
one hand but less protection or no protection
for four other categories of speech: obscenity,
libel, fighting words, or commercial speech.
Traditional political speech gets the highest
protection, but other kinds do not.
In this section we'll look at the development
of obscene speech, particularly pornography.
A problem immediately arises though. If obscenity
or obscene material is not protected under
the free speech clause in the same way that
political speech is, how much can government
regulate it, up to and including banning it
completely. Moreover, and just as important,
how do we define what is obscene -- is a medical
textbook which depicts explicit images of
the human body of adults and children obscene.
Is a work of art, like a Greek statue which
depicts the male genitalia obscene and unworthy
of production? How about a dancer at an exotic
strip club? How about a dancer dressed the
same way at an arthouse? How about hardcore
pornography?
In this section, we'll look at the development
of obscenity, particularly involving pornography.
We'll see that, like other civil liberties
issues we've discussed so far, ideas of what
is obscene have changed dramatically over
time in the United States. We'll also see
how the Court has developed "tests" to determine
whether challenged material is obscene -- thereby
withdrawing 1st amendment protection for the
material -- or is not obscene, thereby giving
the material the full protection of the free
speech clause.
Like with political speech, we inherited our
notions of obscenity from English common law.
In fact, it was not until the 1950's that
the Court abandoned the old common law tests
to determine obscenity. Up until the 1950's,
then, the Court used the "Hicklin" test to
determine obscenity, allowing it to define
it in almost any way they chose. The Hicklin
case was from 1868 and its standard for determining
what was obscene was: "whether the tendency
of the matter charged as obscenity is to deprive
and corrupt those whose minds are open to
such immoral influences and into whose hands
a publication of this sort might fall".
As you can see, the test for obscenity under
Hicklin was strict. In fact, the test suggested
that any material that was or could potentially
offend "those whose minds are open" to such
influences effectively made any material which
might offend or corrupt children obscene -- quite
a high bar.
It was not until the 1950's, though, that
this test would be abandoned. Nevertheless,
the Court continued to develop "tests" to
determine whether material should be deemed
obscene, thus receiving no first amendment
protection.
The first attempt was Justice Brennan's test
in Roth v. United States in 1957. Brennan
developed a two-pronged test: first the material
had to be "utterly without redeeming social
value". The second was "whether the average
person, applying contemporary community standards,
the dominant theme of the material taken as
a whole appeals to prurient interests." A
few years later, in 1962, the Court would
add a third prong: whether the material is
presented in a patently offensive way.
As a result of the Roth case only hard-core
pornography was deemed obscene at the time.
But this was the decade of the 1960's and
sexual revolution. In fact, there were so
many cases coming before the Court in the
late 1960's that the Justices would watch
some of the challenged movies in the screening
room inside of the Supreme Court building.
As cases continued to come up and social conservatives
were pushing hard to have these newer materials
deemed obscene, a new, more conservative court
would alter the Roth test in the early 1970's.
In 1973 in Miller v. California, the Court
rejected the "utterly without redeeming social
value" prong from the Roth test. It kept the
language about the material appealing to prurient
interests, but importantly it added two prongs:
"Whether the work depicts or describes, in
a patently offensive way sexual conduct specifically
defined by state law" and "whether the work,
taken as a whole, lacks serious literary,
artistic, political, or scientific value."
The result was a greater deference to states
and local communities in deciding what kind
of material is obscene and what kind is not.
We'll also see the court from the 1970's onward
allow greater restrictions to pornography
not necessarily because it's deemed to be
obscene, but because its regulation -- or
even complete ban -- is seen as necessary
regulation of that material's secondary effects,
like crime. Also, in their balancing tests,
we'll see that child pornography has never
been seen to survive, but some virtual depictions
of minors have been deemed constitutional.
This is an exciting group of cases that show
the difficulties of weighing individual rights
with legitimate governmental interests.
So as you read, think about the following
questions:
Is there any definition of obscenity that
perfectly keeps out the bad and protects the
good.
Because there is legitimate differences between
Americans about what is and isn't obscene,
how do we strike a balance?
Should the Court be the institution that strikes
this balance for us?
Should states and localities make the decision?
Or is there only one conception of what is
obscene and what is not?
The very protection of the First Amendment
is at stake in your answers.
