Technology and Pornography

Brigham Young University Law Review, 2007 by Nunziato, Dawn C

II. THE FOUNDATIONAL FIRST AMENDMENT JURISPRUDENCE

A. Defining Obscene Speech

Over the past fifty years, the Supreme Court has finely honed its obscenity jurisprudence9 and its derivative jurisprudence of obscenity-for-minors.10 While "obscene"11 speech, properly defined, is wholly outside First Amendment protection for any and all speakers and listeners, "obscene-for-minors"12 (or "harmful-tominors") speech is that speech which only adults have a constitutional right to access (and engage in). The government has a legitimate13 interest in restricting underage access to "obscene-forminors" speech, but it does not have a legitimate interest in restricting adult access to such speech. Therefore, in order to restrict adults' access to sexually-themed content, such content must be found to satisfy the constitutional definition of obscenity.14

Several principles follow from this basic structure of First Amendment jurisprudence regarding sexually-themed speech.15 First, adults have a constitutional right to access (non-obscene) sexual content that falls into the category of obscene-for-minors speech, while minors do not. second, the definitions of "obscene" and "obscene for minors" speech, take on critical importance, as they separate First Amendment-protected content from unprotected content. Third, because of the differences in the relevant First Amendment rights accorded to minors and adults, the ability to determine the age of the individual seeking access to content is of critical importance. Because the definitions of "obscene" and "obscene-for-minors" speech delineate unprotected speech from protected speech, these definitions are also of critical constitutional importance. After struggling for decades to define a meaningful test for distinguishing protected sexually-themed speech from unprotected obscene speech,16 the Supreme Court set forth this test in Miller v. California in 1973.17 In order for sexually-themed speech to fall outside the protection of the First Amendment for adults, Miller requires that:

(1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to die prurient interest;

(2) the work depicts or describes, in a patendy offensive way, sexual conduct specifically defined by applicable state law; and

(3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.18

In the years following this decision, the Supreme Court repeatedly emphasized that Miller set forth the definitive standard for regulating obscene speech.19 It is therefore important to focus carefully on each of the three prongs of this test. If sexually-themed expression falls outside Miller's definition of obscene speech, adults enjoy a right to access it,20 which the government cannot constitutionally restrict or substantially burden.

Miller makes clear that obscenity is to be judged by a local community standard, in particular, that of the average member of the community, to assess whether the expression at issue, taken as a whole, appeals to the prurient interest.21 This prong of the Miller test grants local (geographically-defined) communities the autonomy to draw the line between sexually-themed speech that is to be protected by the First Amendment within and for their respective communities, and sexually-themed speech that is to be deemed outside of the First Amendment's protection within and with respect to their communities.22 Thus, although it might reasonably be believed that the First Amendment sets forth a national standard of protection for expression, in the context of regulating sexuallythemed speech, the Supreme Court's obscenity jurisprudence grants local communities the autonomy to determine what subset of such speech (if any) is to be deemed outside the protection of the First Amendment within and with respect to their communities.