Free Speech

Pornography Is Protected by the First Amendment

Even if "obscenity" is not.

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The specter of pornography is once again haunting the minds of certain American conservatives. "Let's ban porn," Ross Douthat of The New York Times declared last year. Porn is "just a product," he wrote, "something made and distributed and sold, and therefore subject to regulation and restriction if we so desire." In The Daily Caller Zak Slayback recently doubled down on Douthat. "Unlike a Scorsese film or a newspaper, both of which are consumed for artistic enjoyment," he wrote, "pornography is consumed with one outside end in mind: orgasm and masturbation. Its primary purpose is not entertainment (in any colloquial sense of the word) or enlightenment. In that sense, pornography is just a tool, like any other product, and can be regulated like any other product." Slayback added: "Don't let the pornography lobby and libertarians frame this as a free speech issue. It's isn't."

But of course this is a free speech issue, as the U.S. Supreme Court has repeatedly recognized, even in cases in which the Court allowed certain restrictions on "obscene" material to stand.

For more than half a century, the Supreme Court has drawn a line between pornography, which enjoys the protections of the First Amendment, and obscenity, which does not. The distinction between the two shows why any sort of all-encompassing government ban on porn would run afoul of the Constitution.

In A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts (1966), the Supreme Court considered a state effort to have a sexually explicit book declared obscene and therefore banned under state law. Not so fast, the justices told the Bay State. Even a "patently offensive" pornographic work, the Court held, is still protected by the First Amendment. "A book cannot be proscribed unless it is found to be utterly without redeeming social value."

Seven years later, the Court revised its obscenity test in a landmark ruling that continues to hold sway in all legal debates over porn and censorship. According to Miller v. California (1973), "state statutes designed to regulate obscene materials must be carefully limited." A state may only prohibit a work for being obscene if the work meets all of the following criteria:

(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest…(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The Court applied the Miller test a year later in Jenkins v. Georgia (1974), a case which centered on the obscenity conviction of a movie theater manager who screened the film Carnal Knowledge, which featured nudity but would hardly qualify as pornographic by today's standards. Writing for the majority, Justice William Rehnquist—nobody's idea of a liberal squish—struck down the conviction.

Although the Georgia Supreme Court had upheld the theater manager's obscenity bust on the grounds that "the First Amendment does not protect the commercial exhibition of 'hard core' pornography," as Rehnquist put it, he took a different view—literally. "Our own viewing of the film," Rehnquist wrote, "satisfies us that 'Carnal Knowledge' could not be found under the Miller standards to depict sexual conduct in a patently offensive way." One can only imagine the sort of conversations that Rehnquist and his colleagues had in chambers that day.

As these cases illustrate, the question of whether sexually charged material rises to the level of potentially prohibitable obscenity turns in significant part on the specific contents of the work at issue. If the government wants to ban the sale or distribution of a particular dirty movie, in other words, the government must be able to convince the courts that the movie "taken as a whole, lacks serious literary, artistic, political, or scientific value." Otherwise, it is protected by the First Amendment.

A one-size-fits-all government ban on pornography, by contrast, necessarily avoids all such case-by-case determinations and thus violates both the Supreme Court's precedents and the broader First Amendment principles they endorsed.

Like it or not, the debate about porn is always a debate about free speech. The hands of every would-be government censor are still bound by the First Amendment.

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  1. pornography is consumed with one outside end in mind: orgasm and masturbation

    First, ban imprecise and redundant use of the English language. It only serves one outside purpose: confuse people and get them to agree with things.

    Second, I expect a food truck that uses pornographic menus and wrapping paper for the food to show up any day now.

    1. What about those of us who just read the articles?

          1. The best thing about PornHub is the comments.

              1. Here at NYU, we are indeed working to ban imprecise and inappropriately repetitive, as well as redundant, “speech,” along with much of the prurient conduct that we unfortunately still see on a day-to-day basis in our classrooms. In this regard, it should be noted that pornography, along with illegal “parody,” has the quality of being recognizable when one sees it, and is thus easily suppressed, as it should, must, and will be if our society is to advance in the coming years. We have made considerable efforts here, in coordination with law enforcement authorities, to develop “I know it when I see it” criteria for situations involving illegal “satire,” and we hope to develop similar criteria for all forms of inappropriate conduct. For insight into the highly beneficial role we have played in this area of the law, see the documentation of our nation’s leading criminal “parody” case at:

                https://raphaelgolbtrial.wordpress.com/

            1. Just like another internet site of which I know …

      1. Go to a McDonald’s and do that shit you sick fuck.

      2. Who subscribes to The New York Times for the articles? You don’t read that newspaper. You just mention that you subscribe to it when you need to name drop.

    2. Paul Sperry
      @paulsperry_
      BREAKING: The whistleblower is a registered Democrat & CIA analyst who was detailed before the 2016 election to the Obama White House,where he worked on the NSC’s Ukraine desk & met w anti-Trump Ukrainian officials before being sent packing by the Trump NSC & becoming disgruntled

      BREAKING: The Democrat whistleblower who complained about Trump digging up dirt in Ukraine was himself helping dig up dirt in Ukraine against Trump (and Manafort) while working in the Obama White House during 2016 campaign.

      — Paul Sperry (@paulsperry_) October 4, 2019

  2. “Like it or not, the debate about porn is always a debate about free speech.”

    The debate over the banning of Naked Lunch was not about free speech but literary merit. Same with Lady Chatterly’s Lover. At trial, the defense lawyers produced many figures from the literary world to discuss the value of the works.

    1. All porn has literary merit for someone. Trying to argue something shouldn’t be banned because of literary merit is just the tyranny of the majority that sees such merit in some works and not in others.

      1. More retarded, post-modernism or Chipper for swallowing it?

        1. His mom for not swallowing the load he turned into.

        2. Postmodernism leads to some pretty bad conclusions, but that doesn’t mean they are wrong about everything always. We do have to interpret the world to find meaning.
          And the law certainly shouldn’t be involved in deciding what has artistic merit.

          1. “that doesn’t mean they are wrong about everything always”

            A broken clock is right twice a day, but still broken.

            1. Are you going to be showing up here like once a month or so?

        3. I cannot imagine why on earth you would want the government deciding whether your work is bannable based on its literary merits. I personally have always thought the “obscenity” exemption to the first amendment has logical holes sufficient to admit Lady Liberty.

      2. “Trying to argue something shouldn’t be banned because of literary merit is just the tyranny of the majority”

        It’s the tyranny of those with taste. Which only a few of us have.

        1. What the purpose of arguing literary merit an attempt to make a non-obscene work therefore covered under free speech?

          1. You can try that again if you like. I like free speech but I love grammatical speech.

    2. The debate over the banning of Naked Lunch was not about free speech but literary merit.

      But it shouldn’t have been. Free speech/press includes no requirement for merit or literary value. It just means you can publish or say whatever you want, as long as doing so doesn’t involve committing an actual crime with a victim.

      1. Naked Lunch publishers argued for merit and they won. They may have believed in free speech but deemed the argument counter productive to their case.

  3. Stating one’s subjective opinion as an objective fact is a dangerous game to play with individual liberty. Prohibition comes at the point of a state agent’s gun, so let’s all cool with deciding collective goods.

  4. obscenity has lost all meaning because it never meant anything. free speech is free speech, absolutely.

    1. Unless it’s speech that insults Dear Leader. Then it’s Fake News and has to be suppressed.

      1. thank Jeebus T isn’t on the Supreme Court

      2. Youre thinkng of you, people you disagree with, and Reason’s comment section.

        1. Oh right, I DO remember that, when Brandybuck came into the comment section and called for people to be censored.

      3. Haha. Yeah, they’re doing a great job of suppressing it, ain’t they?

        Everything is so terrible and unfair, you poor victim of censorship!

    2. I know it when I see it.

  5. In that sense, pornography is just a tool, like any other product, and can be regulated like any other product.” Slayback added: “Don’t let the pornography lobby and libertarians frame this as a free speech issue. It’s isn’t.”

    The US Constitution nor state constitution do not provide powers to ban products. Regulation, yes, but regulation is not the same extreme power as banning a certain business is.

    1. No Slayback, YOU’RE just a tool.

    2. The power to regulate inherently contains the power to ban absolutely. Beyond just logic and practical effects, it’s even part of the legal theory. While I personally feel the federal government shouldn’t possess that power, sadly neither the modern Supreme court nor even most of the framers of the Constitution agree with me.

  6. “The specter of pornography is once again haunting the minds of certain American conservatives. “Let’s ban porn,” Ross Douthat of The New York Times declared last year.”

    An op-ed writer for The New York Times is a conservative, or is he a conservative because he wants to ban porn?

    The New York Times hired Bill Kristol to be something like their very own straw-man. He seemed conservative when conservative was all about blowing up our enemies in the Middle East, but apart from that . . .

    Does Douthat call himself a conservative? Do other conservatives call him Douthat conservative?

    Isn’t the argument to ban pornography mostly coming from fourth wave feminists these days? If there’s a legitimate threat to pornography these days, I’d expect it to come from social justice warriors on the left. They’re the one who are obsessed with cancel culture and controlling people’s behavior online.

    1. I noticed this as well. Reason completely ignores the strong anti-sex puritanism of the modern progressive movement.

      In most workplaces in America putting up a bikini calendar is enough to get you fired. It wasn’t the Republicans who created these conditions.

      1. In your case the worker is most likely a heterosexual male, and as such has no rights.

        However if a gay coworker puts up a calendar of scantily clad firemen, and that heterosexual male complains, then the complainer will likely be fired for being an intolerant homophobe.

        If it was anti-sex puritanism then the rules would apply equally to everyone. But they don’t.

        Principals, not principles.

      2. the strong anti-sex puritanism of the modern progressive movement.

        I’m sure that’s a major element of their infatuation with Islam.

      3. Religious conservatives have long been anti-porn and continue to be. There are authoritarians all around.
        But I’d agree that conventional conservatives aren’t the bigger threat to free expression at the moment.

        1. “Religious conservatives have long been”

          This is one of those instances where your history is clouding your view of the present.

        2. The PBS account of the Comstock Laws makes it clear that New England was the center of that round of anti-porn hysteria. The anti-porn movement can jump across the aisle easily.

    2. Doushhat has been around a while, you should get out more. He was Andrew Sullivan’s protege at Atlantic before Palin made Sullivan’s mind mush.

      1. The reason I don’t know this guy from Adam may be because I get out more often than most.

        1. you write better. he’s a moron.

    3. “Does Douthat call himself a conservative? Do other conservatives call him Douthat conservative? ”

      How is this important?

      1. “The specter of pornography is once again haunting the minds of certain American conservatives.”

        I’m not the one that brought it up.

        The “conservatives” writing at The New York Times are out to get pornography?

        Oh noes!

        If you want to scare us with a conservative threat to porn, you better come up with something scarier than that.

        Are you planning to support a social justice warrior like Liz Warren to counter that threat? If so, I’m not sure they’re as pro-porn as you’d like them to be.

        Do you really need the whole thread recapped for you–again?

        1. “I’m not the one that brought it up.”

          You spent the entire comment wringing your hands over Doubthat’s conservatism. I don’t see why it’s so important to you.

          “If so, I’m not sure they’re as pro-porn as you’d like them to be. ”

          I really don’t care about their opinion on pornography.

          “Do you really need the whole thread recapped for you–again?”

          You mean re-recapped? Sure if you can spare the time.

          1. You can’t follow a simple argument or a simple thread.

            Trying to make everyone else wait while you catch up all the time is a troll act.

            If you’re not a troll, you might as well be.

            1. If I’m a troll, I’m a troll who’s repeated asked why it’s so important to you whether Doubthat is or is not a conservative.

              1. Which makes me the troll who asks why that is so important to you.

                1. “why that is so important to you”

                  I’m just trying to make sense of what the guy is trying to say.

                  1. No, you’re asking him why it’s so important. Which isn’t the same as what you claim you’re asking. And I’m asking you.

                    And you dodged.

                    1. “And you dodged.”

                      No, you just claimed I dodged. Which isn’t the same thing.

                    2. Your dodge is right here though. And you still haven’t answered.

                      Why is it SO IMPORTANT TO YOU.

                    3. Sorry I was too busy trying to scare us with a conservative threat to porn.

        2. “If you want to scare us with a conservative threat to porn, you better come up with something scarier than that.”

          They could do it if they wanted with existing laws and not even come close to the first amendment.
          If you go to those free video websites you’ll notice that there is a button that says “2257” usually towards the bottom. Every porn site has it. Even foreign ones. If you read that you’ll see that the sites claim to just be a platform that hosts the video and all Section 18 2257 info is with those that upload the material, but they still fit under the definition of “produce” if you read the law by digitizing the image and inserting it on a computer site or service. By uploading to the site you have to “assure” that all people in the video are over 18 and you have the information that is required by law.
          That means their verification process relies on someone claiming those in the video are over 18.

          Oh dear…

          They don’t actually verify. If they were asked to verify and actually comply with Section 18 2257 they wouldn’t be able to, their business model would collapse, and it would go behind a paywall.
          https://www.law.cornell.edu/uscode/text/18/2257
          Lots of people in violation…

          1. What is specifically conservative about that threat?

            1. Look into who was in office when that law was created and each time it was amended.

    4. Hate to say it but both sides. Woke has gotten together with Church Lady and formed a super band that rivals the Traveling Wilburys.

      1. Yeah, on this issue it’s definitely both sides. On the broader issue of free speech, I think that the “woke” crew is more dangerous, though.

        1. “Yeah, on this issue it’s definitely both sides”

          It used to be, sure. Now, I think you’re skewing the influence of R’s beyond what actually exists.

          Have you really not noticed the slow decline of fundamentalist influence?

        2. Ehhhh, I dunno. There’s a pretty strong crew of conservatives out there arguing that censorship is great as long as they’re the ones deciding what’s not allowed (Josh Hawley or whatshisface that got debate-destroyed by French after calling him out, for example). If you want to argue that the woke kids are more dangerous because they’re more likely to be successful, sure, I’ll give you that one. But the rising populism going around is buoying a desire to control speech, and I think those currents are at least as strongly felt by the ostensible conservatives as any of the modern progressives.

      2. Yeah, its fucktards to the left and fucktards to the right. They see each other as evil incarnate but both want to me what to do. Gotta figure out how they can destroy each other AND leave me alone.

    5. “If there’s a legitimate threat to pornography these days, I’d expect it to come from social justice warriors on the left.”

      That is a silly assertion, except perhaps in a world in which superstitious clingers are no longer prudish authoritarians. So long as the Falwell-Robertson-Jeffress-White-Graham choir is operating the Slack-Jaws For Jesus pillar of the Republican Party, ascribing restrictions on pornography to the liberal-libertarian mainstream is delusional.

      1. “Falwell-Robertson-Jeffress-White-Graham”

        Lololol the 90’s called they want their boogeymen back lololol

        I mean fuck nigga, Graham is dead!!! Lolollololl

        1. Lololololl this pussy nigga is afraid of a dead man ahahahahaahahahahha

          How can he be that fucking pathetic ahahahahahaahahha

          He’s literally telling us he’s scared of dead people ahajahahajajajajaja

          1. THAT PUSSY NIGGA IS AFRAID OF DEAD BILLY GRAHAM AHAHAHAAHAHAHAHAAHAHAHAHAAHAHAH

            OMFG HOW DO YOU GO OUTSIDE BEING THAT MUCH OF A PUSSY AHAHAHAAHHA

        2. Franklin Graham isn’t.

  7. also for Pete’s sake somebody blow Ross Douthat before lunch

    1. Good one.

  8. “pornography is consumed with on outside end in mind: orgasm and masturbation”

    Um, they need to change the sequence there.
    If you’re expecting to achieve the former without doing the latter, then you’re doing it wrong.

    1. If they want to take away my porn, they’ll have to pry it from my cold, sticky hands.

  9. “One can only imagine the sort of conversations that Rehnquist and his colleagues had in chambers that day.”

    I think in the 1970s they had porn day at the Supreme Court, where they viewed the movies which had been prosecuted as obscene to see if it, ahem, rose to the level of ban-able obscenity.

    I don’t think it would be as fun today, now that obscenity has moved on to new, and from what I hear grosser, frontiers.

    1. “grosser, frontiers.”

      I believe Washington State is one of the few places where it’s still legal for a man to fuck a horse. And vice versa, mutatis mutandis.

  10. Considering we love in a world now where it is controversial that the First Amendment protects political and religious speech, it is not quite so obvious that it protects pornography.

    1. Protected pornography is for pussies.

  11. So long as we’re going retro, here’s Tom Lehrer’s Smut.

    (probably NSFW)

    https://www.youtube.com/watch?v=5G33fniLwro

    1. Ah, beat me to it!

      1. It was a more innocent age, when prosecutors might target an all-text novel because of its “candor,” and D. H. Lawrence was indignant that his novel was confused with some kind of low porno.

        And who an forget the “wives and servants” quote by the prosecutor from the Lady Chatterley trial?

  12. “pornography is consumed with one outside end in mind: orgasm and masturbation.”

    Every sperm is sacred…

    http://www.youtube.com/watch?v=fUspLVStPbk&

  13. “Don’t let the pornography lobby and libertarians frame this as a free speech issue. It’s isn’t.”

    That’s one boring Venn diagram there.

    1. I’m trying to figure out who exactly the pornography lobby is. I suspect the answer is “all single men, and most single women.”

  14. “Unlike a Scorsese film or a newspaper, both of which are consumed for artistic enjoyment,” he wrote, “-X- is consumed with one outside end in mind”

    Choose X
    a) pornography
    b) binary data for a 3-D printed gun
    c) The Anarchists Cookbook
    d) The Wealth of Nations

  15. And we need to take the moral authority of some NYT hack seriously?

  16. “If the government wants to ban the sale or distribution of a particular dirty movie, in other words, the government must be able to convince the courts that the movie “taken as a whole, lacks serious literary, artistic, political, or scientific value.” Otherwise, it is protected by the First Amendment.”

    For those most part this has been irrelevant. It protected music, but not porn because you can venue shop.

    The problem with the Miller Test is that it allows the government to nab any company that ships such material at any time. For instance, in the United States VS Extreme Associates postal inspectors from Pittsburgh, PA ordered 5 movies from Chatsworth, CA and had them shipped to Allegheny County, PA. Then they shipped 40 federal agents to Chatsworth and raided their offices. Extreme Associates, a husband and wife, were facing 2 life sentences for movies that were so cheesy the average person would laugh. The acts weren’t even the issue for those films. It was the plot lines. (Art) The originating material was from CA, but the government had a good feeling that those in Pittsburgh would have different standards than those in CA. The government expects people to plea to get no jail time, and then they can just repeat this process over and over. Extreme Associates fought it, got it thrown out because the judge said it was unconstitutional, the government appealed, dragged it out for 7 years, Extreme Associates was broke, agreed to a plea with no jail time, and were given 10 months in federal prison.
    By the time it gets to the Miller Test you’re going to go broke because your opponent has unlimited resources. If you win they will appeal. You don’t know if you broke a law until a jury tells you that you did. Telling pornographers what they can and can’t do aside from already existing laws is unconstitutional so they devised a way to bankrupt them while claiming they still have first amendment protections.

    1. Have to agree.

      Essentially “obscenity” just becomes a the modern version of blasphemy, and I’m dismayed there is such a milquetoast defense of it. Speech is speech. Once you start tier some as more worthy than another, you’ve already lost the argument.

      Oh, and those pointing out that the attacks against arise primarily from the left should consider that those hotbeds of liberalism of Utah and Arizona have passed anti-porn resolutions.

      1. Every retailer of porn is aware of the zipcode list. It’s most of Utah if not all. These are places where shipping content has caused a legal case. Most of them conservative states. Showing a penis ejaculating could be considered obscene. In fact, showing anything exiting the penis could be considered obscene. Even confetti. Now, most would argue that it isn’t, but it doesn’t matter because if you fight it expect to pay millions in order to do so.
        Obscenity is so vague and the process for determining that is so fucked up that a Hollywood movie could be considered obscene. They need to get rid of obscenity laws and just charge people for committing crimes on video.

  17. Speaking of the 1st amendment, has Reason covered this?

    Google’s YouTube will pay $170 million to settle allegations by the Federal Trade Commission and the New York attorney general that it earned millions by illegally collecting personal information from children without their parents’ consent.

    The settlement, announced Wednesday, was passed in a 3-2 vote by the commissioners along party lines. The two Democrats voted against it, saying it did not go far enough to punish YouTube.

    Essentially a unanimous vote. Three voting for, two voting against because it didn’t go far enough.

    Fallout already occurring. My daughter tipped me to this.

  18. You know what’s really funny? The idea that the US government has the ability to enforce a law banning pornography.

    I mean, seriously. The Internet is chock full of places to illegally download content that violates US copyright laws, but when it comes to porn, we’ll be able to prevent the illegal download of material that violates US porn laws? The same people who can’t shut down SciHub (which violates the law in 188 countries) will manage to stop PornHub?

    And even if you built a successful Great American Border Firewall, the same people who can’t stop the US Postal Service from delivering packages full of fentanyl from China will stop the US Postal Service from delivering thumb drives full of porn from Canada?

    1. “You know what’s really funny? The idea that the US government has the ability to enforce a law banning pornography.”

      Legislators legislate, Nothing really funny about that. What I find funny is how desperately we want it to have the government stamp of approval, rather than shamefully enjoying our porn in private, as god intended,

      1. Ross Douthat isn’t a legislator, and his call for a ban is based on the social effects of “ubiquitous pornography”, rather than simple symbolism. So it’s directly relevant whether such a ban would actually affect the availability of pornography, particularly since Douhat explicitly claims “the belief that it cannot be censored is a superstition”.

    2. And even if you built a successful Great American Border Firewall, the same people who can’t stop the US Postal Service from delivering packages full of fentanyl from China will stop the US Postal Service from delivering thumb drives full of porn from Canada?

      Now that’s funny.

      From Canada?

      Canada routinely seizes American made porn at the border because it’s ‘obscene’.

      That’s what happens when you don’t have the right to free speech enshrined as inviolable in your written constitution.

  19. And even if you built a successful Great American Border Firewall, the same people who can’t stop the US Postal Service from delivering packages full of fentanyl from China will stop the US Postal Service from delivering thumb drives full of porn from Canada?

    Canadian porn? Damn, they put maple syrup on everything!

    1. Two girls and poutine.

    2. I believe that’s called an “old king clancy”

  20. Pornography Is Protected by the First Amendment

    It’s good to know that my Reason.com fanfiction is safe.

  21. Its primary purpose is not entertainment (in any colloquial sense of the word) or enlightenment.

    Although art can inform and/or enlighten, its primary quality is an ability to evoke an emotion. Horny is an emotion, not a sign of mental illness. Stop demanding that your spouse cure you every time you get horny, and start learning how to make love better. He is tired of slipping halodol into your cocktail every time you complain about getting a boner.

  22. When we start arresting senator’s daughters for sexting, then we can pretend that we care about porn.

    But remind me, why do we care about porn? Are the actresses victims or perpetrators?

    1. “But remind me, why do we care about porn?”

      Workplace safety hazards. If I’m working at a construction site and I get jizz in my mouth it is a clear OSHA violation.

      1. Nope, I won’t ask…nope…

  23. I worked in a friends business which was an adult shop. Mostly Adult Toys. I can’t remember where I read it but Psychologists say Porn Gives a release for men. The believe that if pornography was banned the sexual assault cases might be slightly higher. And Ted Bundt said keep your son’s away from porn. Serial killers are predisposed before birth. What makes them serial killers is how they are raised in most cases.

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