Pornography, Regulation of

Early English Law

As early as 1868, English courts were considering how to regulate sexual content. In Regina v. Hicklin, an English judge held that sexual materials should be considered in light of their effect on the most susceptible members of society. Furthermore, the material could be removed from its context and considered alone to determine its impact. This standard was applied in the United States from colonial times through the 1930s, and it was included in the 1873 Comstock Act, which made it illegal to send any “obscene, lewd, or lascivious” books through the mail. The Comstock Act was used to punish individuals offering contraception products through the mail.

Roth to Miller

The U.S. Supreme Court's first attempt to define obscenity—that is, sexual material that receives no First Amendment protection—was in the 1957 case of Roth v. United States. In this case involving two plaintiffs who sold sexual materials and advertised them through the mail, the Court held for the first time that material deemed legally obscene was outside the protections of the First Amendment. The Court eliminated the Hicklin requirements involving the material's effect on the least susceptible person and the ability of the court to remove the material from its context. Instead, the Court advanced the first legal definition of obscenity: “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest” and is “utterly without redeeming social importance.” (Prurient means lascivious or displaying inordinate interest in sex.)

This standard proved difficult to interpret and apply. Following several years of cases wherein the Court could not decide what was obscene and what was not (prompting the famous and oft-quoted Potter Stewart line from the 1964 case, Jacobellis v. Ohio: “But I know it when I see it, and the motion picture involved in this case is not that”), the Court refined the obscenity test in 1973 in Miller v. California.

This case, which involved a mass mailing to advertise pornographic books, provides the current test for obscenity. A work is considered to be obscene if (1) an average person, applying contemporary community standards, finds the work, taken as a whole, to appeal to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct described in the applicable state law; and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If all three elements of this test are met, the work is legally obscene and without First Amendment protection.

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