The fine line between sex and obscenity; a First Amendment conundrum

Anthony Lewis’s Freedom for the Thought that we Hate tackled another taboo subject from our handy list of human rights this week. In his chapter titled “Another’s Lyric,” Lewis outlined how the Supreme Court decides what’s too raunchy for media and what isn’t. 

As one of mankind’s greatest motives, sex is a historically hot topic for free speech enthusiasts––it’s America’s favorite genre.

Rooted in literary dispute, sexual content has led to the downfall and banning of hundreds of films, books, pamphlets and other forms of media under First Amendment limitations.

Why’s that?

While the First Amendment protects a lot of speech, it does not protect obscenity, and what is obscenity anyway?

In the old days, obscenity was a statutory crime defined as “blasphemy or profanity, or both” in the Constitution. Today, we have a much different rationale––one that a ground-breaking court case, Roth v. United States helped us figure out.

In 1957, Sam Roth was your average book-selling businessman in New York… that is until he was convicted for selling books with erotic themes. Roth thought that his company’s material, no matter how arguably inappropriate or obscene, should be protected under his constitutional right to free speech.

The Supreme Court however, thought otherwise, and in a majority opinion delivered by Justice Brennan, set the timely standard for what qualified as obscenity: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.”

The most important words within that opinion, were “prurient interest,” because it meant the Supreme Court had now created a test to judge what sexual content qualified as valuable to society and what didn’t.

Roth was ultimately found guilty of his “prurient interest” conviction in a 6-3 decision and served four years in prison because of it.

The major argument for the few dissenting opinions in court, was that sex, like any other form of expression (scientific, artistic, literary, etc.) was a subjective way to exercise free speech, and thus should be protected under the First Amendment without question.

The prevailing thought, however, was in favor of censoring obscenity at the time because it “polluted society” with a poor representation of love and marriage.

And the First Amendment issue only got broader as more forms of media began to qualify as forms of obscene speech: magazines, advertisements, movies, etc.

As time went on and more legal cases began to blur the line between acceptable sexual material and material that was too risqué, “the Court acted like a national film licensing board,” screening sex scenes from movies in a backroom, according to Lewis.

Now I don’t know about you, but nine, old, white men trained in law studies (some of whom were lacking in eyesight at the time) isn’t exactly my idea of nuanced film-critics.

By 1973, Supreme Court justices decided that the previously used “prurient interest” test was a tad outdated, so they came up with a new one that expanded more on obscenity: the Miller Test.

The Miller Test, named after landmark court case, Miller v. California, is the system used today to check for obscenity on a three-point scale.

  1. “Whether the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to prurient interest.”

2. “Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.”

3. “Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

The hope with the Miller Test, was that it would clearly draw the line between harmless material and thoughtless representations of sex. But at the end of the day––it was just another way to regulate speech by testing it in a box.

Obscenity is an ever-changing limitation to the free speech part of our First Amendment rights, regardless of the era.

Whether you believe the steamy pages of Fifty Shades of Grey add or take away from society, there’s one thing to remember: what legally separates suggestive content from straight up porn, will always be a subjective definition, interpreted by a small, biased audience.

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