Indecency and Obscenity

Obscenity

With the exception of child pornography, which is ipso facto obscene (New York v. Ferber, 1982), any printed or pictorial sexual expression that fails the test set by the United States Supreme Court in Miller v. California (1973) is not protected by the First Amendment. Sexual expression is obscene if all three parts of the Miller test are failed at once:

The story of how the Court arrived at this analysis begins in New York City at the twilight of the Victorian era, when trade in sex was a highly visible, lucrative industry that drew its players from all walks of life.

Enter Anthony Comstock, a Civil War veteran, determined Christian, and hardly the first one to try toppling New York City's prosperous commerce in sex. With limited housing making for expensive rents, and waves of immigrants standing in lines for low-paying jobs, prostitution evolved as a commonplace lifeline for women and children. Comstock's many reform-minded predecessors tackled the very public vice by trying to shut down brothels, concert saloons, and other venues of open assignation. The tactic failed repeatedly because the economic necessity remained. In the early 1870s, Comstock and his well-heeled benefactors at the Young Men's Christian Association (YMCA) decided on a different tack. A more effective reform, they reasoned, would be one that prohibited newspapers from running advertisements for brothel keepers and abortionists, for example, or that denied publishers the liberty to sell salaciously detailed guidebooks to houses of prostitution, like Butt Ender's (a clear nom de plume) Prostitution Exposed. An effective reform, in short, was one that put new teeth in the law against circulating obscene material in the United States mails and, not incidentally, appointed Comstock as Special Post office Inspector in charge of its enforcement.

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