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Obscenity is the only type of speech to which the Supreme Court has denied First Amendment protection without regard to whether it is harmful to individuals. According to the Court, there is evidence that, at the time of the adoption of the First Amendment, obscenity “was outside the protection intended for speech and press.”[1] Consequently, obscenity may be banned simply because a legislature concludes that banning it protects “the social interest in order and morality.”[2] No actual harm, let alone compelling governmental interest, need be shown in order to ban it.

Obscenity is not synonymous with pornography, as most pornography is not legally obscene; i.e., most pornography is protected by the First Amendment. To be obscene, pornography must, at a minimum, “depict or describe patently offensive ‘hard core’ sexual conduct.”[3]

The "Miller" Test[]

The Supreme Court has created a three-part test, known as the "Miller" test, to determine whether a work is obscene. Under the "Miller" test, many courts have upheld state restrictions on obscene materials.[4]

The Supreme Court has allowed one exception to the rule that obscenity is not protected by the First Amendment. In Stanley v. Georgia, the Court held that “mere private possession of obscene material” is protected. The Court wrote:

Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.[5]

Subsequently, however, the Supreme Court rejected the claim that under Stanley there is a constitutional right to provide obscene material for private use,[6] or to acquire it for private use.[7] 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].’”[8]

Federal statutes[]

Two powers enumerated in Article I, Section 8 of the U.S. Constitution give Congress the power to enact statutes banning obscenity: the power “To regulate Commerce with foreign Nations, and among the several States,” and the power “To establish Post Offices and post Roads.” Thus, Congress may enact statutes, provided they do not contravene any provision of the Constitution, that regulate obscenity that crosses state or national boundaries, is imported or exported, or is mailed.

Federal statutes, in addition to making it a crime to mail obscenity or to transport or receive it in interstate or foreign commerce, provide for criminal and civil forfeiture of real and personal property used in making obscenity pornography, and of the profits of obscenity — in some instances even when they were already used to pay a third party. In addition, obscenity crimes are included among the predicate offenses that may give rise to a violation of the federal Racketeer Influenced and Corrupt Organizations Act (RICO).

Congress has enacted three federal statutes designed to protect minors from sexual material posted on the Internet:

Applicability to non-sexual content[]

The Supreme Court has carefully limited obscenity to sexual content. Although the Court has wrestled with the precise formulation of the legal test by which it classifies obscene material, it has consistently addressed obscenity with reference to sex-based material. Such was the case in Roth v. United States[9] and Memoirs v. Massachusetts,[10] which modified Roth. The Court in Miller v. California expressly cabined the First Amendment concept of obscenity in terms of sexual material.[11]

Circuit courts have resisted attempts to broaden obscenity to cover violent material as well as sexually-explicit material. In American Amusement Machine Ass'n v. Kendrick, which involved a videogame restriction that mixed the regulation of sexual and violent material, the Seventh Circuit discussed why "[v]iolence and obscenity are distinct categories of objectionable depiction," explaining that obscenity is concerned with "offensiveness," whereas ordinances like the one at issue in Kendrick are concerned with conduct or harm.[12] In Video Software Dealers Association v. Webster, the Eighth Circuit held that videos "that contain[] violence but not depictions or descriptions of sexual conduct cannot be obscene."[13] Likewise, in Eclipse Enterprises, Inc. v. Gullota, the Second Circuit declined to place trading cards which depicted heinous crime that was allegedly harmful to minors in the category of unprotected obscenity.[14] Further, in James v. Meow Media, Inc., the Sixth Circuit, in discussing excessively violent movies and video game material, "decline[d] to extend [its] obscenity jurisprudence to violent, instead of sexually explicit, material."[15]

In Ginsberg v. New York,[16] the Supreme Court stated:

We have no occasion in this case to consider the impact of the guarantees of freedom of expression upon the totality of the relationship of the minor and the State. It is enough for the purposes of this case that we inquire whether it was constitutionally impermissible for New York . . . to accord minors under 17 a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see.[17]

Though not the clearest of disclaimers, this language telegraphs that the Court's concern in Ginsberg was with the relationship between the state and minors with respect to a certain subject matter — "sex material" as it relates to the interests of minors.


  1. Roth v. United States, 354 U.S. 476, 483 (1957). However, Justice Douglas, dissenting, wrote: “[T]here is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment.” Id. at 514.
  2. Id. at 485.
  3. Miller v. California, 413 U.S. 15, 27 (1973).
  4. See Recreational Developments of Phoenix, Inc. v. City of Phoenix, 83 F.Supp.2d 1072, 1095 (D. Ariz. 1999) (denying plaintiff’s motion to enjoin an obscenity ordinance because the state law mirrored the "Miller" test); County of Kenosha v. C&S Management, Inc., 223 Wis.2d 373 (1999) (upholding the constitutionality of a Wisconsin law prohibiting the sale of obscene material based on the "Miller" test).
  5. 394 U.S. 557, 565, 568 (1969). The Court has held that there is no right even to private possession of child pornography. Osborne v. Ohio, 495 U.S. 103 (1990).
  6. United States v. Reidel, 402 U.S. 351 (1971).
  7. United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973).
  8. Id. at 127.
  9. 354 U.S. 476, 485-87 (1957).
  10. 383 U.S. 413 (1966).
  11. 413 U.S. 15, 24 (1973) ("[W]e now confine the permissible scope of such regulation to works which depict or describe sexual conduct.")
  12. 244 F.3d 572, 574-75 (7th Cir. 2001), cert. denied, 534 U.S. 994 (2001).
  13. 968 F.2d 684, 688 (8th Cir. 1992) ("Obscenity . . . encompasses only expression that 'depict[s] or describe[s] sexual conduct'" (citing Miller, 413 U.S. at 24)).
  14. 134 F.3d 63, 66-68 (2d Cir. 1997).
  15. 300 F.3d 683, 698 (6th Cir. 2002).
  16. 390 U.S. 629 (1968).
  17. Ginsberg, 390 U.S. at 636-37 (citation omitted).

See also[]