Pornography is the depiction of erotic behavior (as in pictures or writings) that is intended to cause sexual excitement.
Most pornography is not legally obscene; to be obscene, pornography must, at a minimum, "depict or describe patently offensive ‘hard core’ sexual conduct." The U.S. Supreme Court has created a three-part test, known as the "Miller" test, to determine whether a work is obscene.
To be constitutional, a federal statute must be enacted pursuant to a power of Congress enumerated in the U.S. Constitution and must not contravene any provision of the Constitution. Two powers enumerated in Article I, Section 8 of the Constitution give Congress the power to enact statutes regulating or banning pornography: 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 pornography that crosses state or national boundaries, is imported or exported, or is mailed.
The provision of the Constitution that federal statutes regulating pornography are most likely to be in danger of contravening is the First Amendment's provision that "Congress shall make no law . . . abridging the freedom of speech, or of the freedom of the press." Although pornography in general is protected by the First Amendment, two types of pornography — obscenity and child pornography — are 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.
An outright ban on pornography other than obscenity or child pornography would violate the First Amendment unless it served “to promote a compelling interest” and was “the least restrictive means to further the articulated interest.” Obscenity and child pornography, however, being without First Amendment protection, may be 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 harm.
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 U.S. 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 achieved those ends.||”|
- Despite its mentioning only "Congress," the First Amendment applies equally to all branches of the federal government and the states. Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979) (full-text).
- In Frisby v. Schultz, 487 U.S. 474, 481 (1988) (full-text), the Supreme Court noted: “The State may . . . enforce regulations of the time, place, and manner of expression which are content-neutral [i.e., “are justified without reference to the content of the speech,” Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48 (1986) (full-text) (emphasis in original)], are narrowly tailored to serve a significant not necessarily a compelling] government interest, and leave open ample alternative channels of communication [but need not necessarily be the least restrictive means to further the government interest].”
- Sable Comms. of Cal., Inc. v. Federal Comms. Comm'n, 492 U.S. 115, 126 (1989) (full-text).
- In Federal Communications Comm'n v. Pacifica Foundation, 438 U.S. 726, 749-50 (1978) (full-text), the Supreme Court, upholding the power of the Federal Communications Commission to regulate a radio broadcast that was “indecent” but not obscene, wrote:
“ We held in Ginsberg v. New York, 390 U.S. 629, that the government’s interest in the “well-being of its youth” and in supporting “parents’ claim to authority in their own household” justified the regulation of otherwise protected expression. Id., at 640 and 639. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting. ”
In Reno v. American Civil Liberties Union, 521 U.S. 844, 878 (1997) (full-text), the Supreme Court suggested that the strength of the government’s interest in protecting minors may vary depending upon the age of the minor, the parental control, and the artistic or educational value of the material in question.
- 492 U.S. 115, 126 (1989) (citations omitted). It might appear that regulations could be “narrowly drawn” or “carefully tailored” without being the “least restrictive means” to further a governmental interest. But Sable, on the same page, also uses the latter phrase, and the Court has elsewhere made clear that the “narrow tailoring” required for content-based restrictions is more stringent than that required for time, place, and manner restrictions, where “least-restrictive-alternative analysis is wholly out of place.” Ward v. Rock Against Racism, 491 U.S. 781, 798-99 n.6 (1989) (full-text).