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Is Porn Protected by the First Amendment?

Last Updated: December 19, 2023

This week is “Pornography Awareness Week,” also called WRAP Week, (White Ribbons Against Pornography). That’s right. We have one more ribbon-shaped magnet to add to our bumpers.

To many this may seem like a lost cause in our culture. Surely, the naysayer may argue, that amidst all the other causes relating to war, breast cancer, and abortion, pornography is a minor issue. Besides, what exactly are we fighting here? The peddlers of porn aren’t terrorists. They make smutty movies for people to watch in the privacy of their own homes. Where’s the crime here?

Pornography Awareness Week is not just for prudish moralists with an ax to grind; nor is it just for second-wave feminists; nor is it just for moms in minivans with the little Jesus-fish on their bumpers. It is for everyone because everyone has a stake in how big a voice we want porn to have in our culture.

Obscenity Crimes

Is pornography protected by the US Constitution as a right? Yes and no. Yes, the First Amendment guarantees that the government will not abridge the freedom of speech, or of the press. But the role of the US Supreme Court is to interpret the Constitution, communicating what boundaries and limits there might be on our First Amendment rights. In the past, the Supreme Court has ruled that “obscenity” is not covered under the First Amendment. As such, obscenity laws have been on the books at the state and federal levels for a long time. Many times these laws have been upheld by the courts; other times not.

In a 1957 obscenity case, Roth v. United States, the Supreme Court ruled:

“Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press.” (italics added)

So the big question for the courts has been how “obscenity” should be defined as a legal term.

During the Roth case and subsequent cases in the 60s, the Court continually revised the obscenity test, making obscenity laws virtually unenforceable. In the 1973 Miller v. California case, the Court corrected some of the definitional problems it created in the 1960s, but by then, amidst America’s sexual revolution, most prosecutors would not touch obscenity cases.

In Miller v. California, the United States Supreme Court ruled that obscenity laws apply to materials or performances . . .

taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value.

The Supreme Court clarified that this test of true obscenity was intended to “isolate ‘hardcore’ pornography from expression protected by the First Amendment.”

That same year, in Paris Adult Theater I v. Slaton, the United States Court commented that “even if it is feasible to enforce effective safeguards against exposure to juveniles,” enforcing obscenity laws furthers other “legitimate governmental interests” such as protecting a community environment, public safety, morality and family life, and maintaining a “decent society.”

Is there “obscene” material online?

A lot has changed in 35 years since the Miller v. California obscenity test. Sexual mores of our culture have shifted. In 1973, Playboy and Penthouse were duking it out in the magazine world. Today, porn is not a marginal industry but a big business—a $13 billion business. Porn is not limited to magazines hidden behind convenience store counters, but can be found in every crevice of the Internet. In 2004 there were 1.6 million pornographic websites, amounting to 420 million pages of porn—17 times more online porn than just 4 years earlier.

Much of this online pornography is “hardcore” by the admission of those who produce it. But is it “obscene”?

  1. Does at least some online porn “appeal to the prurient interest in sex?”— What defines what is a “prurient interest in sex”? According to the Supreme Court, this must be based on “the average person, applying contemporary community standards” (Roth v. United States). While the “average person” from community to community may hold different standards from 1957 to 1973 to 2008, much of the Internet porn is truly “prurient.” How much “adult” porn depicts young women made to look like minors, thus feeding a thirst for sex with children? How much online porn depicts sexuality in horribly degrading ways?
  2. Does at least some of the online porn portray sexual content “in a patently offensive way”? — Most certainly, yes. Of course, we need to carefully define what is “offensive,” but ask yourself some key questions. When a woman is consistently treated like a piece of meat on film, should it be labeled as offensive? When a pornographic scene depicts sex acts that would if mimicked in real life, cause physical or emotional harm, is this offensive?
  3. Does at least some online porn lack “serious literary, artistic, political, or scientific value”? — I’m not big into separating “erotic art” from “commercial pornography.” I believe they can both easily stem from lustful intentions and be used for lustful purposes. But even if we separate artistic and educational photos and films from the rest of the pornographic landscape, we still find large volumes of worthless material.

What can be done about it?

In saying all this I am not suggesting that all pornography should be labeled obscene and outlawed. I am not trying to be simplistic about legalizing morality. But as Americans, we do live in a society and governmental structure that at least allows us to bring these matters to the attention of the public and the courts.

I’m also not naïvely suggesting that if we do away with obscene material online, this is going to make us behave like good little boys and girls again. Far from it. Like most things, porn works on a supply and demand principle: it is supplied because it is demanded. The root of the problem is in us: we crave it, therefore it exists.

Still, concern about pornography in our culture ought to move us to both personal conviction and social action. Visit our friends at the National Center on Sexual Exploitation for more information on how you can help in practical ways.

  1. By the way, I am a Christian and I go to mass on Suday (not all the time, but most of the time) MY WHOLE LIFE……………………..

    • Chris McKenna

      Hi B.J. – another comment. If you are a Christian, who is “in Christ” (1 Cor 1:30), offering your life as a living sacrifice, how is watching porn leading your towards holiness? Can I invite you to see this through the eyes of faith, instead of through the eyes of our Constitution?

  2. B. J. Korenek

    Excuse me, I got a little “carried away.” Sometimes the “Holier Than Thou” religious right get to me.

  3. B. J. Korenek

    The government should absolutely have no right to determine what I do in the privacy of my home. You want to stop child pornography, go get the guys who produce it. I feel like being an American, in a free democratic society, I have the right to look at anything I want in the privacy of my home, especially if it is channeled into my home and someone is making a profit The only thing that should be censored is child pornography. To censor and take control of the rest of the adult pornography and tell me I cannot watch it in my home is an infringement of my rights as an American. Just think, I CANNOT WATCH WHAT EVERYONE ON THE FACE OF THE EARTH IS DOING, EVERYONE! EVERYONE IS HAVING SEX, THAT’S HOW YOU GOT HERE! It is not exactly morally right, but if it is allowed to be channeled into my home, by the government, I AM GOING TO WATCH IT, IF I CHOOSE TO! You don’t have to agree….

    • Chris McKenna

      Hello B.J. I’ve approved your comment with an edit of your final statement to make it more constructive for our blog. Opinions are welcomed, as long as they don’t violate our “general insensitivity” or “harsh language” guidelines.

      Also, for the sake of argument, can you please elaborate for me why you think child pornography should be censored, while other types of porn are ok? Just curious about your thinking there.

      Thanks – Chris

  4. Brian

    I don’t think porn is protected under the First Amendment. Also, driving or riding around in an automobile is not better that making porn. Bumper stickers do no good. Why should I agree with your bumper sticker when you are polluting my air?

  5. The First Amendment to the Constitution was NEVER meant to protect pornography. It was meant to protect those who speak out against the government without fear of arrest or prosecution, and that is all.

    • Brian

      This person is correct.

    • Janet Hricik

      Pornography has done irreparable damage to the western culture. Our moral standards have degraded to the point where sex is no longer controlled by social standards. Because of this, we are experiencing tremendous social problems…unwanted children, fatherless children, and bloated welfare rolls. Nothing is more damaging to a society than irresponsible sexual behavior and its financial costs to the taxpayers. Some common sense is way overdue. We must not let ourselves be destroyed from within by the world’s power seekers.

  6. F.C. BREWER

    I appreciate all you have done on this.
    The internet is seen by children and aduldts. this should have never happen.
    PORN IS ADDICTIVE IT IS TAKING OVER THE MINDS. OF CHILDREN AND ADULTS. RAPE IS ALL ACROSS USA. PORN HELPS THIS .WOMEN IN THE ARMY AND NAVY ARE RAPE DAILY.
    PORN STARS ARE RUINED, THEY GET SICK AND DIED SOMETIMES KILLED.THEY WILL NEVER FIND A TRUE LOVE.THE PORN BUSINESS SHOULD PAY FOR ALL THEIR ILLNESSES AND FUNERAL EXPENSES. A FEDERAL AND STATE TAX NEEDS TO BE APPLIED TO ALL PORN TO PAY FOR LIVES THEY HAVE RUINED..

    • Brian

      I agree.

  7. Chico Smith

    Probation did not work as is evidenced in history, nor will censorship. There will always be an underground network that will only make some people richer and many poorer. Taxing the industry is a solution, we tax booze and it brings in millions. We have been taxing gambling for decades, Govt. is just now figuring out taxing pot is another boon to the economy, so will taxing porn. Face reality, life’s not perfect, there will always be greed and thus quick ways to make illegal money, thus there will always be vices, there will always be crime, censorship will only make it more inviting and an even more criminal act. Then we have to prosecute the violators and house them in prisons, costing us even more money. Look at all the people in jail for dealing in pot and now pot is becoming legal. just tax them and keep enormous profits out of the industry and eventually it will shrink up to where it isn’t profitable to be in the industry.

  8. michae

    the truth is this cencorship which is not right,there are certain thing they do not want the public to know about

  9. Mike

    It is twisted world where Preachers are arrested for hate speech when they preach against Sodomites, etc, yet Pornography is covered by the First Amendment?

    A suggestion: A class action law suit by women against the Porn Industry that this is in fact hate speech against them. Let the scripture apply that says “the wicked is caught in his own snare”. Either they can shut down the porn industry or our liberal government will repeal hate speech laws.

    • pulpfan1

      Sodomites, hu? that was a hell of an intellectual response. Ill let you know every day this country is moving farther and farther away from the oppressive religious right, in to a society where people are free to be as they were created, with out having the fear of persecution and murder by god fearing people. it is not a perfect society but it is slowly improving, and censorship would only hinder the progress.

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