Pornography

The United States is the pornography capital of the world. Americans produce and consume more pornography than any other nation. The United States produces more then one hundred fifty new titles each week and spends more than $8 billion a year on hard-core videos, peep shows, live sex acts, adult cable programming, computer porn, and sex magazines. This is reportedly more than Hollywood's domestic box-office receipts and larger than the annual revenues generated by rock and country music recordings combined.

Americans rented more than 410 million adult videos in 1991 and purchased 2,400 new adult videos in 1993. Adult bookstores dot the American landscape. Although the stores are subject to local zoning ordinances and state entrance-age restrictions, local law enforcement otherwise generally ignores them. The American characteristic of staunch individualism, coupled with constitutional protection of speech and the press, works against government regulation of pornography.

The First Amendment to the U.S. Constitution stipulates that “Congress shall make no law … abridging the freedom of speech, or of the press.” The Fourteenth Amendment made the Constitution applicable to the state governments, meaning that judges will uphold the right against state officials as well as the federal government.

In Roth v. United States, 354 U.S. 476 (1957), the U.S. Supreme Court held that obscenity is not constitutionally protected speech under the First Amendment. In doing so, it abandoned the test in the British case, Regina v. Hicklin, LR 3 QB 360 (1868), and developed its own definition for obscenity. The Hicklin test defined obscenity as material that has a tendency to deprave and corrupt those who are likely to view the material. The Roth Court introduced the “appeal-to-the-prurient-interest” requirement. The Court defined material appealing to the prurient interest as “having a tendency to excite lustful thoughts,” and defined prurient as “[i]tching; longing; uneasy with desire or longing; of persons, having itching; morbid or lascivious longings; of desire, curiosity, or propensity, lewd.” Material was obscene “if, considered as a whole, its predominant appeal is to the prurient interest, that is, a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in the description or representation of such matters.” Though all erotic material has a propensity to excite lustful thoughts, not all erotic material is obscene. What is required is that the interest has a shameful and morbid quality to it.

Following Roth, the U.S. Supreme Court issued rulings that dramatically changed how the country dealt with erotic literature. These rulings involved works such as Lady Chatterley's Lover, Tropic of Cancer, and Fanny Hill. Before 1966, publishers could not legally publish these books in the United States. Afterward, though, the Court no longer considered obscene those writings that had literary merit, even if they contained sexually explicit material. The Court declared five categories of speech that the government could regulate and thus was outside the protection of the First Amendment: (1) speech that is likely to incite imminent lawless action, (2) defamation, (3) obscenity, (4) fighting words, and (5) child pornography. In so doing, the Roth Court applied a form of the “clear and present danger test.” This test strictly limits the government's reach to cases where a direct or immediate threat to the public is imminent. Indirect or remote harm is insufficient to warrant restrictions on speech. These decisions culminated in the 1973 decision of Miller v. California, 413 U.S. 15 (1973).

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