Pornography Court Decisions in the United States
Pornography Legal Status United States Major Court Decisions
Introduction to Pornography Court Decisions
In 1896 the United States Supreme Court, in the cases Rosen v. United States and Swearingen v. United States, ruled that the definition of obscenity should be the same as the one stated in a famous 1868 English case, Regina v. Hicklin. That case defined obscenity as material that has a tendency “to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.” Judges could rule a work obscene if even isolated passages fit this definition. This broad test changed in the early 1930s as courts grew more concerned about protecting serious literary treatments of sexual themes. A major turning point took place when federal courts overturned the government’s ban on Ulysses (1922), a book by Irish writer James Joyce that many scholars now consider the most important novel of the 20th century. In the 1933 case United States v. One Book Called “Ulysses,” federal judge John Woolsey declared Ulysses nonobscene and rejected the Hicklin “bad tendency” test in favor of a test that focused on the author’s pornographic intent and the effect on the average reader of the work taken as whole.
In the 1957 case Roth v. United States, which involved a Comstock Law prosecution, the Supreme Court ruled that obscene materials are not protected by the First Amendment’s guarantees of freedom of speech and of the press. In its decision, the Court also established a new test for obscenity: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” (Prurient means marked by impure or unwholesome sexual desire.) This obscenity standard was the first designed to protect the First Amendment rights of materials dealing with sex in a manner not appealing to a prurient interest. Before this time, courts based their interpretations of obscenity on their reading of the relevant statutes without reference to the First Amendment.
During the 1960s the Supreme Court developed more liberal tests for obscenity, and the market in pornography exploded in the wake of the sexual liberation movement. In the 1973 case Miller v. California, a somewhat more conservative Court settled on a three-part test that is now the foundation of obscenity doctrine in the United States: (1) whether the work, taken as a whole, would be prurient according to the average person applying contemporary community standards; (2) whether the work describes sex acts in a patently offensive way; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Essentially, this test restricts obscene material to “hard-core” pornography that shows sex acts or displays of genitals in a patently offensive way. Although the Miller definition seems to balance libertarian and conservative moral values, it has proved difficult to apply in practice and has not had much impact on the growth and availability of hard-core pornography.
In the 1985 case American Booksellers Association v. Hudnut, a federal appeals court struck down an Indianapolis antipornography ordinance that employed the feminist definition of pornography as the “sexually explicit subordination of women.” The court ruled that the ordinance violated the First Amendment because it was inconsistent with obscenity doctrine and constituted punishment of speech with a particular viewpoint. Experts pointed to the case as evidence that U.S. courts, in determining obscenity, still focus on prurience and have refused to make violence or degradation elements of obscenity law.
In the 2002 case Ashcroft v. Free Speech Coalition, the Supreme Court ruled that two parts of the Child Pornography Prevention Act of 1996 violated the First Amendment. The act went beyond previous laws by prohibiting “any visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” The Court held that the act’s ban on virtual child pornography, such as computer-generated sexually explicit images of minors, was unconstitutional because pornography could be banned only if it used real children or met the legal test for obscenity. It also invalidated a ban on presenting youthful-looking adults as children in pornographic materials. The Court noted that the act was so broadly worded that it prohibited not only child pornography but also forms of expression with serious literary, artistic, or political value.
The Court’s decision in United States v. American Library Association in 2003 upheld the Children’s Internet Protection Act, the third attempt by Congress to restrict pornography on the Internet. The act required schools and libraries to install filtering software on public Internet terminals as a condition for receiving federal technology funds. Concerns about the software blocking nonpornographic Web sites were misplaced, the Court ruled, because the law allows libraries to restore access to blocked Web sites upon the request of a patron for “bona fide research or other lawful purposes.” The burden placed on these library patrons, the Court said, was “comparatively small” given the legitimate interest of the government in shielding children from inappropriate sexual material.” (1)
Resources
Notes and References
- Information about Pornography Court Decisions in the Encarta Online Encyclopedia
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