The Volokh Conspiracy

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Free Speech

Obscenity (Including as to Minors) and "the Work Taken as a Whole"

An isolated sexually themed passage, even a graphic one, doesn't make a work obscene.


The Court of Mist and Fury / Gender Queer controversy is a good opportunity to note an important legal principle: Under modern American law, a work can only be "obscene" and therefore constitutionally unprotected—or "obscene as to minors," and therefore constitutionally unprotected when distributed to minors—if it's basically pornographic taken as a whole.

"A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication." The rule once seemed to be that, "to be smut, it must be ut- / terly without redeeming social importance," but that is no longer so.

But, conversely, a few sexual scenes in a work likewise don't make a publication obscene. The question is whether its dominant theme appeals to the "prurient interest," which is to say a "shameful or morbid" interest in sex. (The government must also show that the work is patently offensive under contemporary community standards, and that, taken as a whole, it lacks serious value.) Even Justice Scalia, who was open to pretty substantial restrictions on pornographic material, acknowledged this:

[In our obscenity precedents], we rejected the approach previously adopted by some courts, which would permit the banning of an entire literary work on the basis of one or several passages that in isolation could be considered obscene. Instead, we said, "the dominant theme of the material taken as a whole" must appeal to prurient interest.

(He in turn was quoting Roth v. United States (1957), which was modified in some measure by Miller v. California (1973); but, as Justice Scalia noted, Miller only added extra elements the government must show beyond this "dominant theme" constitutional requirement.) And the same applies to obscene-as-to-minors material.

Now this isn't so for all First Amendment exceptions. Someone can be prosecuted for possessing child pornography even if that's an isolated picture within a broader work. Likewise, someone can be sued (or prosecuted) for libel based on a libelous statement in a mostly nonlibelous work.

But when it comes to the obscenity exception, the law is settled: Isolated pornographic passages don't make a work unprotected.

UPDATE: A comment reminded me that I should elaborate a bit on the "dominant" point; in Ginzburg v. U.S. (1966) (not to be confused with Ginsberg v. N.Y. (1968), or Ginsburg, J. (1993-2020)), the Court noted that a work's dominant theme could be evaluated not just based on what's inside it but also based on how it's marketed: "[I]n close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the [obscenity] test," with "pandering" defined as "the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers."

But the Court stressed that in that case, "each of these publications was created or exploited entirely on the basis of its appeal to prurient interests"; again, the focus is on the dominant appeal of the work, not just one incidental feature. (Ginzburg doesn't seem to have been used much in recent years, but it has been cited favorably at times, so it still seems to be good law.)