Where Free Speech Fits In

We're still trying to figure out exactly what pornography is, at least where the courts are concerned. Pornography may seem to take up most of the Internet, but people are still uneasy when it comes to sex.

U.S. Supreme Court Cases on 'Obscenity'

So-called "obscene" material, from pictures to videos (even books), can be banned or have been banned under state and federal law throughout the country, in the fear that obscene or pornographic material will offend the sensibilities of vulnerable people.

Some of the fear is justified; some of it is not.

Back in 1964, Justice Potter Stewart of the U.S. Supreme Court wrote about pornography: " I know it when I see it," in a case that involved a movie shown in a public theater in Ohio ( Jacobellis v. Ohio ). In that case, the state charged the movie theater manager with a crime for showing an "obscene" movie to the public. The Court ultimately ruled that the movie was not pornography.

Later, in 1973, the Court took another shot at defining pornography in Miller v. California , a case that gave us the reigning "three-prong standard" for considering what is obscene (and therefore subject to government regulation) and what is not. In Miller, a man was charged under California law for sending hardcore pornography to potential customers by direct mail. The Court ruled that the man's conduct was not protected under the First Amendment.

The Miller case is said to have made prosecutions for pornography easier for the government.

Scope of the First Amendment

According to Wikipedia on freedom of speech:

"Criticism of the government and advocacy of unpopular ideas that people may find distasteful or against public policy are almost always permitted. There are exceptions to these general protections, including the Miller test for obscenity, child pornography laws, speech that incites imminent lawless action, and regulation of commercial speech such as advertising."

The government, in other words, can ban child pornography as obscene, and therefore prosecute someone under the criminal law for violating a child pornography statute. But, at the same time, pornography is generally permissible-with some restrictions on the way it can be marketed and sold-under the free speech protection of the First Amendment.

Obscenity in the Internet Age

It's worth noting that the Miller test for obscenity came out of 1973, a time before the dawn of the Internet as we know it today. Part of the Miller test involves judging the offending material based on local "community standards."

As Mike Godwin pointed out on Reason.com, "[w]hat folks consider obscene-that is, without any redeeming social, cultural, or aesthetic value-in one place may be unobjectionable somewhere else." Judging the standards of the community is tough when it comes to the Internet.

But one thing is certain: child pornography is regarded by the law as obscene, or without any redeeming social, cultural, or aesthetic value, meaning that it is not protected by the First Amendment.

So what, exactly, is child pornography? This is the question that must be answered before we can be convicted of violating the criminal law. First, we look at the U.S. Supreme Court case New York v. Ferber, which held that child pornography does not need to be legally "obscene" before it can be outlawed.