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Brief Guide to the First Amendment and Sexually Themed Speech:

I'm writing a post about this morning's U.S. v. Williams decision, and I realized it would be good to lay out this brief guide — it might be helpful for future controversies, too.

I. Obscenity: The Supreme Court has held that the First Amendment does not protect the distribution of "obscenity," a narrow category that basically covers hard-core pornography. To be obscenity, a work must satisfy all three of the following elements, largely drawn from Miller v. California (1973):

  1. "the [a] average person, [b] applying contemporary community standards, would find that the work, [c] taken as a whole, [d] appeals to the prurient interest,"

  2. "the work depicts or describes, [a] in a patently offensive way [under [b] contemporary community standards, Smith v. U.S. (1977)], [c] sexual conduct specifically defined by the applicable state law," and

  3. "the work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific value[, [d] applying national standards and not just community standards."

Note also that, (4) mere private possession of obscenity can't be constitutionally outlawed, though distribution and even transportation for one's own private use may be. See Stanley v. Georgia (1969); U.S. v. Orito (1973).

II. Child Pornography: The Supreme Court has also held that the First Amendment does not protect the distribution or possession of "child pornography," which basically covers

  1. "visual[] depict[ions]" of

  2. actual children below the age of majority (and not just fictional pictures or pictures of adults who look like children)

  3. "performing sexual acts or lewdly exhibiting their genitals."

See New York v. Ferber (1982); Ashcroft v. Free Speech Coalition (2002) a category that basically covers depictions of actual children in sexual contexts.

III. Distribution of Sexually Themed Material to Minors: The Court has held that the law may bar distribution to specific minors of sexually themed material, even if the material doesn't fall within the above exceptions. The test for such unprotected material is basically the Miller test (see item I above), with "of minors" or "for minors" added to each prong (e.g., "the work taken as a whole, lacks serious literary, artistic, political, or scientific value for minors"). Ginsberg v. New York (1968), a pre-Miller case, upheld a law that implemented the then-current obscenity test with "to minors" added at the end of each prong; most lower courts and commentators have assumed that Ginsberg plus Miller justify laws that implement the Miller-based test given above.

IV. Public Display of Sexually Themed Material, Where Minors and Offended Viewers Might See It Alongside Willing Viewers? It's not clear to what extent the government may bar this, at least assuming the material fits within the obscene-as-to-minors framework described in item III — the Court has struck down limits on Internet distribution of such material, but lower courts had upheld limits on non-Internet distribution and display, for instance through coin-operated newsracks. The Supreme Court has also strongly suggested that the display of such material -- including mere nudity and not just obscene-as-to-minors material -- on broadcast television is constitutionally unprotected.

V. Pornography More Generally: Sexually themed material that fits in none of the above categories is constitutionally protected, though the "erogenous zoning" cases allow greater regulations of — though generally not total bans on — bricks-and-mortar businesses, such as theaters and bookstores, that distribute pornographic material to walk-in customers.

Guest Question:
Coincidentally just writing about related issues. How does the definition found in 18 U.S.C. 2256(8) (which includes images that are "indistinguishable from" minors engaging in sexually explicit conduct) square with Ashcroft's holding that a ban on images that "appear" to be children engaged in sexually explicit conduct is unconstitutional?

Genuinely interested to hear an expert opinion on this.
5.19.2008 3:20pm
Just Dropping By (mail):
IIRC, the definition in 18 USC ยง 2256 was passed after Ashcroft and tracked language in O'Connor's dissent from that decision. I'm not aware of any reported court decision addressing whether the "indistinguishable from" language is actually valid or if it would still be barred by the rule from Ashcroft.
5.19.2008 3:36pm
Dilan Esper (mail) (www):
Public Display of Sexually Themed Material, Where Minors and Offended Viewers Might See It Alongside Willing Viewers? It's not clear to what extent the government may bar this -- the Court has struck down several limits on Internet distribution of such material, but lower courts had upheld limits on non-Internet distribution and display, for instance through coin-operated newsracks. The Supreme Court has also strongly suggested that the display of such material, including mere nudity, on broadcast television is constitutionally unprotected.

Erznoznik v. City of Jacksonville holds that public display of sexually themed materials is covered by Cohen v. California; sensitive viewers can avert their eyes.

Television is a different issue, because of FCC v. Pacifica Radio. But outside of the broadcast spectrum, this issue is decided unless and until Erznoznik gets overturned.
5.19.2008 4:42pm
KJJ:
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The Supreme Court has held that the First Amendment does not protect the distribution or creation of "obscenity,"


I don't believe that the Supreme Court has ever addressed the creation of obscenity. Under Stanley v Georgia one could presumably create an infinite amount of obscene material for personal use.
5.19.2008 4:50pm
Eugene Volokh (www):
Dilan: Note that Erznoznik expressly leaves open the possibility that the public display of some sexually themed speech -- e.g., that covered by Ginsberg -- might indeed be prohibited. "It is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults. See, e.g., Ginsberg v. New York. Nevertheless, minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them. [Citations omitted.]

In this case, assuming the ordinance is aimed at prohibiting youths from viewing the films, the restriction is broader than permissible. The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited. Rather, it sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of context or pervasiveness. Thus it would bar a film containing a picture of a baby's buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors. See Ginsberg v. New York, supra. Nor can such a broad restriction be justified by any other governmental interest pertaining to minors. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them....
5.19.2008 5:02pm
methodact:
This will not stand. Like Dred Scott or Korematsu, SCOTUS will reverse. Signed, sealed and delivered.
5.19.2008 5:21pm
darelf:
If I'm not mistaken, Korematsu has not been explicitly overturned.

But more importantly, it is sheer hyperbole to compare Dred Scott to this decision. ( or in my opinion, to the same-sex marriage issue )
5.19.2008 5:39pm
en pointe:
America's form of FGM
5.19.2008 5:39pm
KJJ:
As I see it the entire obscenity doctrine is over broad and void for vagueness. Even First Amendment experts are unable to look at the statutes and case law to determine which material is obscene. The law provides no fair warning as to which conduct is prohibited.
5.19.2008 5:43pm
CJColucci:
Suppose I create a (non-obscene) oil painting or charcoal drawing of naked children lewdly exposing their genitals or engaging in sexual activity. Is it child pornography? Does the answer depend upon whether I have created likenesses of actual children (not necessarily from live poses) or whether I have created imaginary or generic children?
5.19.2008 6:16pm
Dilan Esper (mail) (www):
Professor Volokh:

I don't think your comment is inconsistent with what I said. Sexually themed speech can be publicly displayed, under Erznoznik, unless it is obscene as to minors. Your post talked of sexually themed speech, not speech that is obscene as to minors. And it seemed like a gaping omission that you would talk about public display of sexually themed speech as an open question without mentioning the controlling Supreme Court case on that issue.
5.19.2008 7:16pm
Eugene Volokh (www):
Dilan: I'm sorry, I misunderstood -- I had assumed that it was clear that in item IV I was talking chiefly about the obscene-as-to-minors material I discussed in item III. (If you focus on possible exposure to minors, as opposed to unwilling viewers, that must be so, since presumably if material is protected for direct distribution to identifiable minors, it would be protected for public display to an audience that may include minors.) But it looks like I wasn't clear on this, especially given the reference to mere nudity as to television; I've tinkered with the language to make this clearer.
5.19.2008 8:00pm
ReaderY:
In my view, the fundamental mistake of Miller v. California was to claim that a court has any greater ability to determine what the standards of a community are than a legislature. Not only is there no legitimate textual basis for such a claim, the guarantee of a republican form of government, in my view, means that legislatures have the right to determine the standards of a community wherever such standards may determined, and it is utterly not the business of courts to claim that duly elected legislatures do not represent the people because some poll-taker claims the public disagrees with the standards they enact.

Although obscenity, like many crimes, was historically defined at common law based on standards determined at each trial, nothing ought to prohibit a legislature from replacing any common-law standards it wishes with statutory standards or to pass rules providing a common-law court with greater or specific guidance than the traditional common-law standard.

In my view, community standards are what a legislature says they are, defining community standards is a legislature's very job.

One could argue that obscenity laws should be struck down in their entirety and the state should be out of the business of prohibiting it. And Miller was an improvement over the previous regime, in which the Supreme Court acted as a national censorship board, viewing films and deciding based on the Justices' own personal tastes and beliefs. But I don't believe a Court has any power to require that community standards be determined by a court or a jury rather than a legislature, such a decision is not only not generally a matter of federal concern, but the Republican Form of Government clause means, in my view, that a state has a specific constitutional right to have its standards determined by its legislature in any case where the standards of the community need defining. Once the Supreme Court determined that community standards were permissable, it should not have specified how those standards should be defined in a way that runs against the Republican Form of Government clause; it should not have endorsed the spectacle of a judge telling a legislatures that its laws are unconstitutional because they don't represent the community, or of courts accepting witness testimony that the legislature is out of touch. Courts must accept and respect that legislatures by definition represent the community. That's what elections mean. Miller is deeply disrespectful of democracy and of the very idea of elected, representative government accountable, not to courts, but solely to the people. If a legislature enacts written, detailed guidance on community standards and the people don't believe the standards set by the legislature represents them, they can elect new legislators with standards more to their liking.
5.19.2008 11:04pm