Can the Supreme Court Draw the Line on Obscenity?

The question of drawing the line between protecting American citizens’ rights to free speech as granted to them by the First Amendment, and protecting them from being unwillingly exposed to pornographic or otherwise obscene content, has historically proved difficult for judges and politicians. Chapter 8 of Anthony Lewis’ Freedom for the Thought That We Hate describes these challenges as felt by the Supreme Court. While the idea of the most serious and respected justices in the country being forced to discuss pornography–and even attend courthouse screenings of the films at issue–sounds more like something out of Parks and Recreation than real life court proceedings, it illustrates the same challenge that every court dealing with a First Amendment issue has had to confront: the struggle to draw the line between freedom and safety.

While managing that distinction is no easy task, the language used to define and qualify obscenity in court has certainly not made it easier. The test created by Justice Brennan to decide what obscene content is censorable reads, “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” He later added that, in order to be banned, material had to be “utterly without redeeming social value.” Professor Robert H. Bork of the Yale Law School argued for censorship of pornography because it caused “pollution of the moral and aesthetic atmosphere,” affecting “views of social institutions such as marriage and the family.” And the case of Jacobellis v. Ohio led Justice Stewart to come up with his own famous words on sexually obscene content; “I shall not today attempt further to define the kinds of material I understand to be embraced…[but] I know it when I see it.”

The challenging aspect of this rhetoric is that it is so easily lends to different interpretations. Is it possible for an entire governing or judicial body, let alone an entire country, to agree on what constitutes “community standards?” Who is to say what has “social value” and what doesn’t, and who is the “average person” that can make such a distinction? These aren’t easy questions to answer, especially given that the very definition of sexually obscene content–at least the most famous Court definition, as offered by Justice Stewart–is frustratingly vague.

Vague definitions and qualifications do little to make controversial cases easier to reach a decision on. Room for personal interpretation isn’t something we typically look for in concrete and comprehensive law systems. But what other options is the Supreme Court left with? Either they follow the route of Justices Douglas and Black, whose staunch positions on the First Amendment maintain that it “ordains absolute freedom,” potentially leaving room for unconsenting children and adults to be exposed to harmful obscene images; or they create rules and tests so exhaustive and precise that they remove any sense of subtlety from a topic that ultimately can never be black-and-white.

I believe that this all-or-nothing approach to discussions of sensitive material is destructive. Federal regulations on obscene content do have their place in protecting unconsenting people from being exposed to potentially harmful content. However, while explicit laws on precisely which obscene images, scenes, and situations should and shouldn’t be banned might make some court proceedings easier, it would be at the expense of any nuanced discussion on the social value that obscenity can offer. And intellectual and creative expression would suffer for it.

Vague language is indeed frustrating. But with issues that challenge and evoke the First Amendment, to which nuanced discussion and an investigation of context is essential, trying to nitpick precisely which images are and aren’t allowed would be more limiting than freeing. Issues that involve our right to free speech–whether it’s anti-war dissent or a sex scene that’s being censored–deserve discussion. And while the free speech issues that are brought before the Court continue to evade black-and-white conclusions, our judicial branch will be unable to officially draw the line.