Is Pornography Legal?
Thursday April 7, 2011
by Daniel Weiss
Some people mistakenly believe that all pornography is legal. This is certainly a myth that the pornography industry and many socially liberal institutions, including many in the mainstream media, would have us believe. It’s not difficult to understand how this falsehood has taken root in our cultural consciousness. Pornography is everywhere—in gas stations, the airport, on TV, on the radio, and all over the Internet. If all of this pornography were violating the law, surely someone would do something about it.
So, is it legal or not?
It is important to first define pornography. The United States Supreme Court wrote in Miller v. California:
‘Pornography’ derives from the Greek (porne, harlot, and graphos, writing). The word now means "1: a description of prostitutes or prostitution 2: a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement." Webster's Third New International Dictionary
Many current definitions are similar to this, and pornography might be described as: Sexually explicit material whose primary purpose is to cause sexual arousal.
Because of differing personal tastes, social conditioning and religious convictions, people will vary on what they consider sexually explicit or understand to be sexually arousing.
Fortunately, the law is not so vague.
“Pornography” per se is not prohibited by federal law, unless it involves sexually explicit depictions of minors. Rather, the law distinguishes between indecent and obscene sexual material. Indecent pornography enjoys limited First Amendment protection and is generally legal for adults to sell, distribute or possess, so long as it is not made available to minors.
Obscene material has no First Amendment protections, save one. The U.S. Supreme Court in Stanley v. Georgia ruled that individuals have the right to possess obscene material only in the privacy of their own home. The court also clearly stated that the right to possess obscenity in the home did NOT translate into the right of another person or business to deliver it to the home.
Proponents of pornography frequently invoke a right of privacy. However, they mistakenly apply that argument to the business of selling obscene material. The court has expressly rejected this.
Apart from the right of private possession in the home, obscene material is illegal to sell, distribute, transport across state lines or produce with intent to sell.
How do I know what is obscene?
Advocates for the pornography industry have tried to define obscenity as something so beyond the pale most people cannot even imagine it. When pressed for a definition, they might begrudgingly define obscenity as pornographic material depicting sex with children or animals, or violent torture. This definition serves their economic interests well, since very little pornography this extreme is produced, at least by the mainstream companies.
The law, however, does not define obscenity so rigidly or necessarily place it so far on the fringe of the pornographic spectrum. Case law does not define specific acts and representations as obscene. Rather, material suspected of violating the law is afforded a jury trial to determine whether or not it is obscene.
In its landmark case Miller v. California, the Supreme Court designed a trial system that would allow a local jury to determine if pornographic material rose to the level of obscenity.
The court wrote that pornography would be considered obscene if a jury determined that:
If this seems confusing, the court further defined the type of material that could be prohibited:
The average person, applying contemporary community standards, would find that the material, when taken as a whole, appeals to the prurient interest; and
The material depicts or describes sexual conduct in a patently offensive manner, when applying contemporary community standards; and
A reasonable person would find that the material, when taken as a whole, lacks serious artistic, literary, political, or scientific value.
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
This guidance indicates that a lot of pornography might be considered illegal under state or federal law if it were simply investigated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
Is obscenity law still viable in an “anything goes” culture?
In fact, guilty verdicts are still being delivered.
In 2008, a local prosecutor in Staunton, Va., successfully prosecuted an adult video store on obscenity charges, despite facing the top two pornography defense attorneys in the nation.
In 2008, federal prosecutors received a guilty plea for distributing obscenity online from Karen Fletcher, whose website contained graphic descriptions of the rape and torture of children.
In 2009, the high-profile federal prosecution of Rob Black, Lizzie Borden and their company, Extreme Associates, resulted in guilty pleas and one year of jail time for each.
To summarize, not all pornography is legal. Obscene pornography is prohibited by federal law and most state laws. Further, the U.S. Supreme Court has given clear instruction to help communities determine which material violates local standards.
To learn more about federal and state obscenity laws, visit the National Obscenity Law Center.
You Might Be Surprised (to learn what is illegal under federal law)
Negative Secondary Effects: How Sex Shops Affect your Community
Protect Your Community from Sexually Oriented Businesses
Report Online Obscenity
Daniel Weiss is ROCK's director of research and national outreach.