Obscenity and Indecency: Constitutional Principles and Federal Statutes
Publication Date: September 2008
Publisher(s): Library of Congress. Congressional Research Service
The First Amendment provides: "Congress shall make no law . . . abridging the freedom of speech, or of the press." In general, the First Amendment protects pornography, with this term being used to mean any erotic material. The Supreme Court, however, has held that the First Amendment does not protect two types of pornography: obscenity and child pornography. Consequently, they may be banned on the basis of their content, and federal law prohibits the mailing of obscenity, as well as its transport or receipt in interstate or foreign commerce.
Most pornography is not legally obscene; to be obscene, pornography must, at a minimum, "depict or describe patently offensive `hard core' sexual conduct." The Supreme Court has created a three-part test, known as the Miller test, to determine whether a work is obscene. Pornography that is not obscene may not be banned, but may be regulated as to the time, place, and manner of its distribution, particularly in order to keep it from children. Thus, the courts have upheld the zoning and licensing of pornography dealers, as well as restrictions on dial-a-porn, nude dancing, and indecent radio and television broadcasting.
Federal statutes, in addition to making it a crime to mail obscenity or to transport or receive it in interstate or foreign commerce, provide for criminal and civil forfeiture of real and personal property used in making obscenity pornography, and of the profits of obscenity -- in some instances even when they were already used to pay a third party. In addition, obscenity crimes are included among the predicate offenses that may give rise to a violation of the Federal Racketeer Influenced and Corrupt Organizations Act (RICO).
The Internet has given rise to three federal statutes designed to protect minors from sexual material posted on it. The Communications Decency Act of 1996 makes it a crime knowingly to use a telecommunications device (telephone, fax, or e-mail) to make an obscene or indecent communication to a minor, or knowingly to use an interactive computer service to transmit an obscene communication to anyone or an indecent communication to a minor. The Supreme Court, however, held the inclusion of "indecent" communications in this statute unconstitutional. Congress, in response, enacted the less-broad Child Online Protection Act (COPA), the enforcement of which has been enjoined while its constitutionality is being challenged. Finally, the Children's Internet Protection Act (CIPA), enacted at the end of the 106th Congress, requires schools and libraries that accept federal funds to purchase computers or Internet access to block or filter obscenity, child pornography, and, with respect to minors, material that is "harmful to minors." Filters may be disabled, however, "for bona fide research or other lawful purpose." On June 23, 2003, the Supreme Court held CIPA constitutional.