US Constitutional Obscenity Perspective

Posted on August 2, 2021 |

While discussing US Constitutional Obscenity Perspective, have to ponder upon the enactment of federal statutes, the mandate of Congress given in the Constitution should be followed. Two mandates specified in Article I, Section 8 of the Constitution enable Congress to sanction resolutions controlling or forbidding porn: the mandate “To direct Commerce with unfamiliar Nations, and among the few States,” and the mandate “To build up Post Offices and post Roads.” Thus, Congress might establish rules, if they don’t contradict any arrangement of the Constitution, that manage porn that crosses state or public limits, is imported or traded, or is sent.

The provision of the Constitution that federal statutes regulating pornography are most likely to be in the vulnerability of breaching is the First Amendment’s provision that “Congress shall make no law to abridge the freedom of speech, or of the press.”

Although pornography, in general, is protected by the First Amendment, two types of pornography ‘obscenity and child pornography’ shall not. Therefore, pornography that does not constitute obscenity or child pornography may ordinarily be regulated only with respect to its time, place, and manner of distribution.

Compelling Interest

A complete ban on pornography other than obscenity or child pornography would violate the First Amendment except it served “to promote a compelling interest” (A government interest is compelling if it is essential or necessary rather than a matter of choice, preference, or discretion.) and was “the least preventive means to further the articulated interest.” Obscenity and child pornography, however, is without First Amendment protection, maybe totally banned on the basis of their content, not only in the absence of a compelling governmental interest but in the absence of any evidence of damage.

Obscenity outwardly is unique in being the only type of speech to which the Supreme Court has denied First Amendment protection without regard to whether it can cause harm. According to the Court, there is evidence that, at the time of the acceptance of the First Amendment, obscenity “was outside the protection intended for speech and press.” Therefore, obscenity may be banned simply because a legislature concludes that banning it protects “the social interest in order and morality.”

Three-prong Obscenity Test: The Miller Test

Most pornography is not legally obscene. To be obscene, pornography must, at a minimum, “depict or describe patently offensive ‘hard core’ sexual conduct.” The Supreme Court has created a three-part test, known as the Miller test, to determine whether a work is obscene. The Miller test asks:

(i) whether the “average person applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (ii) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (iii) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Contemporary Community Standards

The Supreme Court clarified that “the first and second prongs of the Miller test, appeal to prurient interest and patent offensiveness, are issues of fact for the jury to determine applying contemporary community standards.” However, as for the third prong, “the proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.” (Pope v. Illinois)

Protection of Minor

When a federal statute refers to “obscenity,” it should be understood to refer only to pornography that is obscene under the Miller standard, as the application of the statute to other material would ordinarily be unconstitutional. However, narrowly drawn statutes that serve a compelling interest, such as protecting minors, may be permissible even if they restrict pornography that is not obscene under Miller. In Sable Communications of California, Inc. v. Federal Communications Commission, the Supreme Court recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. The government may serve this legitimate interest, but to withstand constitutional scrutiny, “it must do so by narrowly drawn regulations without unnecessarily interfering with First Amendment freedoms.” It is not enough to show that the government’s ends are compelling; the means must be carefully tailored to achieve those ends.

Consequently, however, the Supreme Court rejected the claim that under Stanley there is a constitutional right to provide obscene material for private use or to acquire it for private use. The right to possess obscene material does not imply the right to provide or acquire it, because the right to possess it “reflects no more than – the law’s ‘solicitude to protect the privacies of the life within the home.