Amendment 1 — Obscenity

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Although public discussion of political affairs is at the core of the First Amendment , the guarantees of speech and press are broader, extending also, for example, to sexually explicit entertainment. The Supreme Court has rejected the idea that the First Amendment “applies only to the exposition of ideas,” saying “[t]he line between the informing and the entertaining is too elusive for the protection of that basic right.” [1](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn1amd1 " Winters v. New York, 333 U.S. 507, 510 (1948). Illustrative of the general observation is the fact that “[m]usic, as a form of expression and communication, is protected under the First Amendment.” Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). Nude dancing is also. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 564 (1991). ") The right to impart and to receive “information and ideas, regardless of their social worth . . . is fundamental to our free society.” [2](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn2amd1 " Stanley v. Georgia, 394 U.S. 557, 564 (1969). ") Accordingly, obscene material, referring to certain sexually explicit material,[3](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn3amd1 " See, e.g., Cohen v. California, 403 U.S. 15, 20 (1971) (noting that “obscene expression” must be “erotic,” not just crude); accord Mahanoy Area Sch. Dist. v. B.L., No. 20-255, slip op. at 8 (U.S. June 23, 2021). ") may be protected even if it is “arguably devoid of any ideological content.” [4](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn4amd1 " Id. at 566. See also Winters v. New York, 333 U.S. 507 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Commercial Pictures Corp. v. Regents, 346 U.S. 587 (1954); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959). The last case involved the banning of the movie Lady Chatterley’s Lover on the ground that it dealt too sympathetically with adultery. The Court stated: “It is contended that the State’s action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.” Id. at 688–89. ") Nonetheless, while sexually explicit material may be entitled to constitutional protection, the Court has said the subcategories of obscenity and child pornography—the latter discussed in a subsequent essay—can generally be regulated without triggering heightened scrutiny.[5](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn5amd1 " . ")

Adjudication over the constitutional law of obscenity began in Roth v. United States,[6](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn6amd1 " 354 U.S. 476 (1957). Heard at the same time and decided in the same opinion was Alberts v. California, involving a state obscenity law. The Court’s first opinion in the obscenity field was Butler v. Michigan, 352 U.S. 380 (1957), considered infra. Earlier the Court had divided 4-4 and thus affirmed a state court judgment that Edmund Wilson’s Memoirs of Hecate County was obscene. Doubleday & Co. v. New York, 335 U.S. 848 (1948). ") in which the Court ruled that obscenity is not “within the area of protected speech and press.” [7](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn7amd1 " Roth v. United States, 354 U.S. 476, 485 (1957). Justice William Brennan later changed his mind on this score, arguing that, because the Court had failed to develop a workable standard for distinguishing the obscene from the non-obscene, regulation should be confined to protecting children and non-consenting adults. See Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973). ") The Court undertook a brief historical survey to demonstrate that “the unconditional phrasing of the First Amendment was not intended to protect every utterance.” [8](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn8amd1 " 354 U.S. at 483. ") All or practically all the states that ratified the First Amendment had laws making blasphemy or profanity or both crimes, and provided for prosecutions of libels as well. This history was deemed to demonstrate that “obscenity, too, was outside the protection intended for speech and press.” [9](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn9amd1 " 354 U.S. at 482–83. ") The Court said that although “[a]ll ideas having even the slightest redeeming social importance” were entitled to First Amendment protections, “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” [10](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn10amd1 " 354 U.S. at 484. See also Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942). ") Because obscenity was not protected at all, tests such as clear and present danger, which the Court had previously applied to assess the constitutionality of other laws, were irrelevant.[11](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn11amd1 " 354 U.S. at 486 (quoting Beauharnais v. Illinois, 343 U.S. 250, 266 (1952)). ")

The Court clarified, however, that, “sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, for example, in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press . . . . It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.” [12](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn12amd1 " 354 U.S. at 487, 488. ") The Court identified the relevant standard for unprotected obscenity as “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” [13](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn13amd1 " 354 U.S. at 489. ") The Court defined material appealing to prurient interest as “material having a tendency to excite lustful thoughts,” and defined prurient interest as “a shameful or morbid interest in nudity, sex, or excretion.” [14](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn14amd1 " 354 U.S. at 487 n.20. A statute defining “prurient” as “that which incites lasciviousness or lust” covers more than obscenity, the Court later indicated in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985). The Court noted that obscenity consists in appeal to “a shameful or morbid” interest in sex, not in appeal to “normal, healthy sexual desires.” Id. Brockett involved a facial challenge to the statute, so the Court did not have to explain the difference between “normal, healthy” sexual desires and “shameful” or “morbid” sexual desires. ")

In the years after Roth, the Court considered many obscenity cases. The cases can be grouped topically, but, with the exception of those cases dealing with protection of children,[15](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn15amd1 " In Butler v. Michigan, 352 U.S. 380 (1957), the Court unanimously reversed a conviction under a statute that punished general distribution of materials unsuitable for children. Protesting that the statute “reduce[d] the adult population of Michigan to reading only what is fit for children,” the Court pronounced the statute void. Narrowly drawn proscriptions for distribution or exhibition to children of materials which would not be obscene for adults are permissible, Ginsberg v. New York, 390 U.S. 629 (1968), although the Court insists on a high degree of specificity. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968); Rabeck v. New York, 391 U.S. 462 (1968). Even those Justices who would proscribe obscenity regulation for adults concurred in protecting children in this context. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113 (1973) (Brennan, J., dissenting). But children do have First Amendment protection and government may not bar dissemination of everything to them. The Court stated: “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.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–14 (1975) (in context of nudity on movie screen). See also FCC v. Pacifica Foundation, 438 U.S. 726, 749–50 (1978); Pinkus v. United States, 436 U.S. 293, 296–98 (1978). ") unwilling adult recipients,[16](https://www.law.cornell.edu/constitution-conan/amendment-1/obscenity#fn16amd1 " The Court emphasized protecting unwilling adults in Rowan v. Post Office Dep’t, 397 U.S. 728 (1970), which upheld a scheme by which recipients of objectionable mail could put their names on a list and require the mailer to send no more such material. But, absent intrusions into the home, FCC v. Pacifica Found., 438 U.S. 726 (1978), or a degree of captivity that makes it impractical for the unwilling viewer or auditor to avoid exposure, government may not censor content, in the context of