One of the most perplexing of all speech-related problems has been the issue of obscenity and what to do about it.  A wide variety of tests have been employed by individual justices to determine what is constitutionally proscribable obscenity, and for long periods of time, no single approach commanded the support of a majority of the Court.  The difficulty of defining obscenity was memorably summarized by Justice Stewart in a concurring opinion when he said: "I know it when I see it."  Two presidential commissions have been formed to make recommendations on a national response to pornography.  The first commission, The 1970 Lockhart Commission, recommended eliminating all criminal penalities for pornography except for pornographic depictions of minors, or sale of pornography to minors. Another commission appointed under President Reagan, the Meese Commission, came to a different conclusion, recommending continued enforcement of laws regulating hard-core pornography, even when only adults were involved.

For the past three decades, the courts have been concerned almost exclusively with obscene visual images, not graphic verbal descriptions of sexual activity, but such was not always the case.  The early and celebrated legal battles in this country sometimes involved what are now recognized as great works of fiction that included sexual themes: books such as James Joyce's Ulysses or D. H. Lawrence's Lady Chatterly's Lover.  But it is important to remember that obscenity issues can still involve non-visual material, as demonstrated by a Florida prosecutor's decision to (unsuccessfully) try the rap group Two Live Crew for violating Florida's obscenity statute by singing rap songs with graphic sexual lyrics.

The first of our cases, Stanley v Georgia (1969), is remarkable for its unanimity.  In Stanley, the Court concludes that Georgia cannot, consistent with the First Amendment, criminalize the private possession of pornography--even if the sale and distribution of that same material would not be constitutionally protected. The Court found that an individual has "a right to satisfy emotional needs in the privacy of his own house."  (In 1990, however, the Court--in a 6 to 3 decision--found that constitutional protection for private possession of pornography does not extend to pornography involving children.)

Smith v California concerns what must be shown to convict a bookseller in an obscenity case.  The Court concludes that the First Amendment requires the government to prove more than that the bookstore contains constitutionally proscribable obscenity.  The government must also prove that the bookseller knew that he was selling obscene materials so as not to have a chilling effect on speech that might be protected.

Miller v California sets out the "modern" test for obscenity.  After years in which no Supreme Court opinion could command majority support, five members of the Court in Miller set out a several-part test for judging obscenity statutes: (1) the proscribed material must depict or describe sexual conduct in a patently offensive way, (2) the conduct must be specifically described in the law, and (3) the work must, taken as a whole, lack serious value and must appeal to a prurient interest in sex.  What is patently offensive is to be determined by applying community values, but any jury decision in these cases is subject to independent constitutional review, as the Court's decision in Jenkins v Georgia makes clear.  New York v Ferber underscores the strength of the state's interest in protecting minors from the harmful effects of pornography.  Ferber holds that state's may proscribe sexual material involving minors, even if that material may not meet all of the prongs of the Miller test.

In Ashcroft v Free Speech Coalition, the Court considered a challenge to the Child Pornography Prevention Act of 1996 which made it illegal, under certain circumstances, to distribute or possess sexually explicit computer- generated images of children, or of persons over eighteen who looked under eighteen. The Court, noting the law in question did not serve the goal of preventing direct sexual exploitation of children, found it to be unconstitutionally overbroad.  Writing for the Court, Justice Kennedy suggested that the law might have been enforced against such movies as Oscar-winning American Beauty or Romeo and Juliet.

In 2008, in United States v Williams, the Court considered Congress's latest effort to attack the problem of child pornography on the Web.  The PROTECT Act of 2003 made it a crime to knowingly advertise or promote visual depictions of minors engaging in sexually explicit activity.  Writing for the Court, Justice Scalia found the law to be a constitutionally permissible effort to criminalize the proposing of an illegal transaction.  Scalia reasoned that because child pornography is not protected speech, speech that proposes to sell or provide such material is no more protected by the First Amendment than would be speech that proposed to sell or provide illegal drugs.  Justices Souter and Ginsburg dissenting, finding the law substantially overbroad.

Scene from the movie American Beauty.