{"id":45,"date":"2015-06-01T18:02:21","date_gmt":"2015-06-01T18:02:21","guid":{"rendered":"http:\/\/revolutionsincommunication.com\/law\/?page_id=45"},"modified":"2026-04-18T13:42:53","modified_gmt":"2026-04-18T13:42:53","slug":"obscenity","status":"publish","type":"page","link":"https:\/\/revolutionsincommunication.com\/law\/obscenity\/","title":{"rendered":"Obscenity"},"content":{"rendered":"
\"Elon

Musk<\/p><\/div>\n

In early January, 2026,<\/strong> the sudden emergence of thousands of non-consensual\u00a0 AI deepfake sex videos created an uproar over regulation of services like xAI’s Grok. Posting non-consensual sex images (sometimes called \u2018revenge porn\u2019) is illegal in the\u00a0US<\/a>,\u00a0EU<\/a>,\u00a0UK<\/a>,\u00a0Brazil<\/a>,\u00a0India<\/a>, and\u00a0Australia,\u00a0<\/a>\u00a0but how the laws will be applied in this new situation is unclear.\u00a0 For now, X has pulled the image generating function for Grok back behind a paywall. (Also see\u00a0US v Williams<\/a>, 2008;\u00a0Ashcroft v Free Speech Coalition<\/a>, 2002).\u00a0 \u00a0Elon Musk decried the \u2018censorship\u2019<\/a> over the AI deepfakes in which Grok posted manipulated images of real people without consent on X.<\/p>\n

Although the technology is modern, the question of what is obscene and how it damages people and society has a long history.<\/p>\n

\n

Longstanding debate\u00a0<\/strong><\/h3>\n
\"George<\/a>

George Carlin\u2019s \u201cSeven Dirty Words<\/a>\u201d (Warning: Not for children)\u00a0 comic monologue was the subject of the FCC v. Pacifica Foundation case of 1978. In the end, the court supported the FCC\u2019s restrictions on indecency (as opposed to obscenity). Indecent content, the FCC said, would be restricted to a “safe harbor” between the hours of 10 p.m. and\u00a0 6 a.m.\u00a0 A similar comedic sketch on Britain’s Office of Communication (OfComm) is found here.\u00a0<\/a><\/em><\/p><\/div>\n

Obscenity laws are concerned with prohibiting lewd, filthy, or\u00a0 disgusting\u00a0 words or pictures, \u00a0and there are major disagreements as to what is or isn’t obscene and what role the government should play in enforcing social or cultural morals. All fifty states have laws to control obscenity. \u00a0Virginia\u2019s obscenity statute is typical of most states, using language \u00a0from the Miller v California decision (1973). It defines obscenity as:<\/p>\n

\u201c\u2026 that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond\u00a0 customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.\u201d<\/p><\/blockquote>\n

The Supreme Court has consistently held that the First Amendment does not\u00a0 protect everything. \u00a0Materials that are declared legally obscene<\/strong><\/em> are not protected; they may be censored and creators and distributors may be punished, sometimes with jail sentences.<\/p>\n

On the other hand,\u00a0 \u00a0materials or expressions that are indecent<\/strong><\/em>\u00a0may be restricted in terms of time, place and manner, but are still protected by the First Amendment.<\/p>\n

One issue is how, exactly,\u00a0 can we distinguish obscenity from indecency? The definitions are foggy and have changed over time. \u00a0Supreme Court Justice Potter Stewart famously said\u00a0\u00a0(in Jacobellis v. Ohio<\/a>, 1964\u00a0):”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<\/a>….” \u00a0Stewart\u2019s dilemma illustrates the difficulty for the courts in clarifying the ground rules for obscenity.<\/p>\n

Gloria Steinem, a feminist scholar and writer, once made a salient point\u00a0 about the problem behind obscenity: \u201cSex is the tabasco sauce that an adolescent national pallet sprinkles on every dish on the menu.\u201d<\/p>\n

It’s important to remember that real lives and livelihoods are at risk in obscenity cases. Between the 1870s and the late 1950s, many thousands of printers, booksellers, writers, artists, dancers and speakers went to jail as a result of obscenity laws. \u00a0Moral crusader Anthony Comstock even bragged about the numbers he had jailed in the 19th and early 20th century. One\u00a0 New York bookseller, Sam Roth,\u00a0 was sentenced to seven jail terms in the 1950s, including two 3-year terms, for selling books that would hardly raise an eyebrow today.<\/p>\n

\n

Inconsistency in the law\u00a0<\/strong><\/h3>\n
\"\"<\/a>

\u2018Sic Semper Tyrannis\u2019\u00a0 means Thus Always to Tyrants.<\/p><\/div>\n

Decisions\u00a0 by local, state or federal authorities to suppress obscene or indecent materials\u00a0 are rarely consistent. \u00a0Sale of materials that might have been met with\u00a0a small fine in one state, or in one decade,\u00a0could lead to long jail terms and heavy fines in another state or another decade.<\/p>\n

One interesting example of this inconsistency in the law involves the attitude towards partial nudity in\u00a0 official symbols. The seal of the state of Virginia, which shows the Roman\u00a0 Goddess Virtus dressed in amazon garb standing over the body of a tyrant, had an exposed breast when it was designed in1776. During the Civil War, the exposed breast was covered by the Confederate government. Afterwards the original seal was replaced. One Virginia city,<\/a> at least, continued the Confederate-era modesty.<\/p>\n

\"\"<\/a>

Michelle Renay Sutherland is arrested\u00a0 for her portrayal of the Roman goddess Virtus.<\/p><\/div>\n

An interesting sidelight was a protest that took place at the state capitol in Richmond, Va. in February, 2019, involving an artist’s re-creation of the Roman goddess Virtus on the state seal.\u00a0 State Police arrested \u00a0Michelle Renay Sutherland and held her on a charge of\u00a0 indecency, but prosecutors dropped the charges in early March.\u00a0 \u00a0\u00a0<\/span><\/p>\n

\n

A short legal history of obscenity\u00a0<\/b><\/h3>\n

Obscenity and pornography are found in many cultures dating\u00a0 back millennia, but have usually kept from public view. For example, some of the statuary and frescoes preserved under the ashes of the Roman city of Pompeii were so explicit that they were kept in back rooms of royal\u00a0 museums and were seen only by gentlemen who paid an additional fee.<\/p>\n

Until the 1700s,\u00a0 the church might persecute obscene books and engravings\u00a0 in ecclesiastical courts.\u00a0 In Protestant England such courts were more concerned with politics than morality, and when Fanny Hill: Memoirs of a Woman of Pleasure<\/em> by John Cleland was first published in 1749, British authorities took no notice. Trade in erotic literature grew in the 19th century. London\u2019s Holywell Street, known as Bookseller\u2019s Row, was the home of 57 porn shops by 1834.<\/p>\n

\"\"<\/a>In the 1830s and 40s, London\u2019s\u00a0 Society for the Suppression of Vice,<\/a> (with branches in many cities) pushed for\u00a0 laws that gave magistrates authority to issue warrants to seize and destroy obscene materials.\u00a0 Prosecution of \u201cobscene libel\u201d also became common as the law increasingly recognized a problem in the Victorian era.\u00a0 \u201cPollution\u201d of the environment, especially sewage and industrial runoff, was often equated with the \u201cmoral pollution\u201d from Booksellers Row.<\/p>\n

The case that set the Victorian era standard for obscenity was:<\/p>\n

Regina (Queen) v. Hicklin <\/strong><\/span>(1868 L.\u00a0R. 3 Q.\u00a0B. 360)<\/p>\n

The context of R. v Hicklin is the enforcement of the 1857\u00a0\u00a0Lord Campbell Act,\u00a0<\/a>which set a standard for obscenity in Britain. The law wasn\u2019t tested until 1868, when bookseller Henry Scott was brought up on charges\u00a0 for \u00a0a lewd anti-Catholic pamphlet called \u201cThe Confessional Unmasked<\/a>,\u201d a piece of crude anti-Catholic propaganda that was part of the social turmoil\u00a0around the Murphy Riots.<\/a><\/p>\n

Scott appealed to Benjamin Hicklin, a recorder in London,\u00a0 and although Hicklin ruled in Scott\u2019s favor because his intention was to argue about religion, not to deprave morals. The ruling was later overturned by Alexander Cockburn, Britain\u2019s chief justice, who said the law did not turn on the intentions of the creator or distributor of obscene materials, but rather on the effect on readers:<\/p>\n

\n

\u201cThe test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose\u00a0 hands a publication of this sort may fall.\u201d \u00a0<\/strong><\/p>\n<\/blockquote>\n

So:\u00a0 Bad tendency \u2014 most susceptible \u2014 any small part of the work \u2014 <\/em>These are the elements of the Hicklin Rule.\u00a0\u00a0
\n<\/strong><\/em><\/p>\n

This Hicklin\u00a0 Rule<\/strong>\u00a0was cited in American court\u00a0 cases in the 1800s and early 1900s. The rule allowed a publication to be judged for obscenity based on isolated passages of a work considered out\u00a0 of context and judged by their apparent influence on most susceptible\u00a0 <\/em>readers, such as children or weak-minded adults. The Hicklin rule was the legal foundation of \u201cComstockery\u201d in America<\/p>\n

Comstock<\/span>\u00a0 and the suppression of vice in the US \u2014 1870s to 1930s<\/strong><\/p>\n

\"\"<\/a>After the Civil War. reform movements of many kinds emerged. Some promoted life, liberty and human rights, for example, the women\u2019s suffrage movement<\/a> that led to women’s voting rights; or the environmental movement, which had origins in the desire to preserve and protect life.<\/p>\n

However, another was the anti-obscenity movement headed by Anthony Comstock<\/a>\u2014 a crusading super-moralist\u00a0 devoted to strict ideas of Victorian morality and censorship. (Comstock’s story is told in a 2021 book, “The Man Who Hated Women<\/a>.”)<\/p>\n

In theory, the definition of obscenity in the US rested on the state level. For example, Massachusetts censors banned books like Memoirs of a Woman of Pleasure as early as 1821. And the US Tariff Act of\u00a0 1842 was the first federal law restricting imports of\u00a0 obscene material. It\u00a0 didn\u2019t have much effect, and as the Victorian era dawned in America in the\u00a0 wake of the Civil War, Comstock and other crusaders set about improving America\u2019s moral posture.<\/p>\n

The Comstock Laws\u00a0 <\/strong>
\nIn 1873,\u00a0 Comstock lobbied Congress to pass\u00a0 a \u201cdecency\u201d bill which outlined a wide range of moral guidelines and penalties for mailing any sexually oriented publication, including information about family planning, abortion, venerial disease, contraceptives or sexual issues of any kind. Even a printed discussion of birth control was obscene and therefore not protected by the First Amendment. (Much of this bill is still in place<\/a>, although rarely enforced).<\/p>\n

\"\"<\/a>

Even the Police Gazette was targeted by zealous anti-obscenity advocates. (US National Archives).<\/p><\/div>\n

Comstock was named a special agent of the Post Office and given free transportation to go wherever he wanted and enforce the law that carried his own name. He bragged later that he was responsible for sending enough people to jail to fill a 61 coach passenger train.<\/p>\n

Some of the people Comstock charged could not live with the shame. In 1878, Ann Trow Lohman (aka Madame Restell<\/a>) was arrested for the crime of selling contraceptive pills. She died by suicide, and was only one of many, \u00a0Comstock\u00a0 boasted.\u00a0 (Sex and the Constitution<\/em><\/a>, 2017).\u00a0<\/span><\/p>\n

At the height of his power in 1883,\u00a0 Comstock seized a reproduction of <\/span>Alexandre Cabanel\u2019s\u00a0The<\/em>\u00a0Birth of Venus <\/em><\/a>from a New York gallery.\u00a0 <\/span>\u00a0<\/i><\/p>\n

Comstock\u2019s own New York Society for the Suppression of Vice and the Boston Watch and Ward Society<\/a> were two of the leaders. If you ever hear the phrase \u201cBanned in Boston,<\/a>\u201d you may find it interesting to know that this is the group that had it banned. Among things they banned over the years: Walt Whitman\u2019s Leaves of Grass (in 1882); Bocaccio\u2019s The Decameron and Rabelais\u2019 Gargantua and Pantagruel (Renaissance-era books banned in 1903); Elinor Glyn\u2019s Three Weeks (in 1907); The National Police Gazette (1911); Robert Keable\u2019s Simon Called Peter (in 1922 ); Floyd Dell\u2019s Janet March (in 1923).<\/p>\n

Most famously, the Watch and Ward Society banned Herbert Asbury\u2019s short story Hatrack, published in H.L. Mencken\u2019s American Mercury (1926) which led to Mencken\u2019s arrest.\u00a0 As Steve King wrote\u00a0 in a 1956 Saturday Evening Post article,\u00a0 \u201cH.L. Mencken and the Booboisie:<\/a>\u201c<\/p>\n

\n
\"\"

H.L. Mencken, a Baltimore Sun columnist and editor of the American Mercury, was an acerbic critic of the American political scene. He called the people promoting laws against obscenity the “Booboise,” combining the idea that they were intellectual “boobs” with the French word for middle class people, the bourgeoisie .<\/p><\/div>\n

Mencken\u2019s most famous literary battle was fought in 1926, over a forgettable short story he published by Herbert Asbury, entitled \u201cHatrack.\u201d<\/a><\/strong> Hatrack was a small-town prostitute whose efforts to reform were indignantly rebuffed. It became her habit to take her Catholic clients to the Protestant cemetery, and vice-versa. The punch line of the story occurs when one of her customers tenders Hatrack a dollar, to which she responds, \u201cYou know damned well I haven\u2019t got any change.\u201d<\/p>\n

<\/a>

Victoria Woodhull <\/a>as the devil with her free love doctrine is depicted trying to lure a woman with an alcoholic husband and a crying baby down the path, and away from salvation.<\/em> (Thomas Nast, 1872)<\/p><\/div>\n

Reverend Chase of The New England Watch and Ward Society was not amused. He managed to get Mencken\u2019s magazine pulled from newsstands in the Boston area, and he threatened legal action if there were further attempts to sell it. This was a line that Mencken managed to cross in dramatic fashion. He contrived to meet with Chase on Brimstone Corner of Boston Common, with the vice squad and a clutch of photographers in attendance. Mencken sold Chase the magazine and got carted away, but not before getting his picture taken biting Chase\u2019s half-dollar to test it, as Hatrack would have done. The next day the judge ruled in Mencken\u2019s favor, and the case became a small landmark in the campaign for literary freedom, and in Mencken\u2019s headline-grabbing career.<\/p><\/blockquote>\n

Although its influence began to decline in the 1920s, the Watch and Ward society continued to black list books and movies, among\u00a0them: Aldous Huxley<\/a>\u2019s Point Counter Point, Voltaire\u2019s Candide, Erich Maria Remarque\u2019s All Quiet on the Western Front; Theodore Dreiser\u2019s An American Tragedy; John O\u2019Hara\u2019s Appointment in Samarra; Lillian Hellman\u2019s play The Children\u2019s Hour; and, as late as 1950, Erskine Caldwell\u2019s God\u2019s Little Acre.<\/p>\n

Comstockery was not only concerned about publications with dirty\u00a0 pictures. Comstock and other social conservatives of the era worried that the women\u2019s suffrage movement (to give women the vote) and new\u00a0 ideas about women’s rights were undermining American\u00a0 morality. Indeed, propaganda against suffrage workers like Victoria Woodhull<\/a> was fairly typical. In one Thomas Nast engraving, we see\u00a0 Woodhull as the devil with her “free love” doctrine trying to lure a woman with an alcoholic husband and a crying baby moving down the path away from salvation. By “free love<\/a>“,\u00a0 Woodhull meant\u00a0 the\u00a0 freedom to marry, divorce and bear children without social restriction or government interference.<\/p>\n

\"\"

In 1914, Margaret Sanger published the Woman Rebel, which included frank discussions about contraception, and was indicted for violating the Comstock Acts.\u00a0 The newspaper was banned and Sanger was indicted for violating postal obscenity laws.\u00a0 She faced a potential 45 years in jail, but\u00a0 went into exile in England for several years. When the laws changed several years later, she returned to open clinics and continue her advocacy through a group that eventually became known as Planned Parenthood.<\/p><\/div>\n

The women\u2019s movement<\/strong> reacted to \u201cComstockery\u201d by\u00a0 insisting on a free speech right to discuss birth control. <\/a>In 1914, Margaret Sanger<\/a> published the Woman\u00a0 Rebel,<\/a> which included frank discussions about contraception. She was indicted for violating the Comstock Acts,\u00a0 although the charges were dismissed by the 1920s. Sanger’s ideas about free speech and birth control seem admirable in the modern context, \u00a0but other ideas do not. \u00a0For example, she hoped birth control could be used to keep the “Nordic” races from being overwhelmed <\/a>by other races that she considered inferior. \u00a0In this she was a woman of her times, subject to (and supporting) some of the social evils that were accepted in their day.<\/p>\n

To be sure, even simplest, most basic\u00a0 information about birth control continued to be illegal in the US and Canada until the late 1960s. \u00a0One group of McGill University students who hoped to inform women about their rights and options published the illegal “Birth Control Handbook” in 1968.<\/a>\u00a0 \u00a0 Two years later the Boston Women’s Health Collective published Our Bodies Ourselves<\/a>.<\/p>\n

The long arm of federal censorship\u00a0 <\/strong><\/p>\n

** Mutual Film v. Industrial Commission of Ohio,<\/strong><\/a> 1915 \u2014 Ohio set up a system of\u00a0 board of censors which, by law, could only approve films that were \u201cof a\u00a0 moral, educational, or amusing and harmless character.\u201d The law was upheld and, on appeal, the Supreme Court said that the state has an interest in public morals and that films \u201cmay be used for evil.\u201d Noting that audiences were made up of both adults and children, the court said that \u201ca pretense of worthy purpose\u201d might make films \u201ceven more insidious in corruption.\u201d Freedom of speech does not apply to spectacles and circuses, the court said. It is interesting that the court considered the state\u00a0 constitution\u2019s guarantee of free speech here and not the US Constitution\u2019s First Amendment. Following this decision, the system of censorship continued on a national level through the Hays Committee and the Motion Picture Association of America through the 1960s, then changed to the current rating system: G, PG, PG-13, R and NC-17.\u00a0 The Mutual Film decision was overturned in Burstyn v Wilson,<\/a> <\/strong>1952. (Below)<\/p>\n

One Book Entitled Ulysses v. US<\/a>, <\/strong>1933, One of the most frequently censored books of the early 20th century, Ulysses (by James Joyce) was finally brought to trial in 1933. Judge John Woolsey found the book not obscene, and his decision in\u00a0 the case did not apply the Hicklin Rule, which was the standard at the time.\u00a0 One aspect of the Hicklin Rule stated that in order to determine a work\u2019s\u00a0 obscenity, its effects on the most susceptible members of society had to be\u00a0 determined. In Ulysses v. US, Woolsey said that instead of the most susceptible\u00a0 members of society, its effects on the average person determine a work\u2019s obscenity.\u00a0 Where the Hicklin Rule allowed for a work to be judged by individual passages, which could be easily taken out of context, Woolsey based his judgment\u00a0 on the work as a whole. The case was appealed, but the Appeals Court upheld\u00a0 Woolsey\u2019s decision, and in effect the Hicklin Rule was abolished in the US on the federal\u00a0 level.<\/p>\n

\"\"<\/a>** Joseph Burstyn Inc. v Wilson<\/a>,<\/strong> 1952 — A landmark case in which the Supreme Court said that film was an artistic medium and should be given the same First Amendment rights as any other art form. The case is often referred to as the Miracle Decision,\u00a0 since the European film in question, written by Roberto Rossellini, involves a young farm woman who may (or may not be) a little off balance. She meets a wandering vagabond (played by Federico Fellini, who also directed) and thinks that he is Saint Joseph. She wants to take him away to paradise. He gives her a drink and she falls asleep. The next day, he’s gone, and soon she is pregnant.\u00a0 She is driven from her town, and in the course of time, gives birth to a child that she believes is the son of God.<\/p>\n

** Roth\u00a0 v. US<\/span><\/a>,<\/span><\/strong> 1957 \u2014 \u00a0New York city bookstore owner and poet Samuel Roth<\/a> was arrested on federal obscenity charges. \u00a0Roth’s appeal went to the US Supreme Court, which said that obscene materials were not protected\u00a0 by the First Amendment.\u00a0 The Roth standard formally replaced Hicklin Rule. Under Roth, obscenity is defined this way:<\/p>\n

\u201cWhether to the average\u00a0 person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” \u00a0<\/em><\/strong><\/p><\/blockquote>\n

The Supreme Court was not entirely happy with this definition, and would tinker with it for many decades. \u00a0 But once the federal standard had changed, strict state standards could be challenged. \u00a0The first of these was in the famed “Howl” trial.<\/p>\n

\"\"

San Francisco court room is full in the 1957 obscenity trial of Alan Ginsburg’s poem Howl, published by City Lights.<\/p><\/div>\n

The ‘Howl’ \u00a0obscenity trial <\/a>—<\/strong>\u00a0In March of \u00a01957, when the US Supreme Court was hearing the Roth case, San Francisco prosecutors brought Allen Ginsburg and Lawrence Ferlinghetti up on state obscenity charges for publication of the long poem: “Howl<\/a>.” \u00a0The\u00a0Roth case was decided by the Supreme Court\u00a0in June, 1957, \u00a0before the Howl trial began in September, and so the federal Roth standard was used in the state Howl case. After considering the evidence, using the Roth standard, Judge Clayton Horn\u00a0\u00a0found Ginsburg and Ferlinghetti not guilty<\/strong>.<\/a> \u00a0Although the case was \u00a0not precedent-setting in a legal sense, it\u00a0had a major impact on public opinion and was the first time the Roth standard was applied by a state court. \u00a0 The Howl decision also encouraged\u00a0the re-opening of other cases where judges had found books \u00a0 obscene, particularly\u00a0D. H. Lawrence’s\u00a0Lady Chatterly’s Lover<\/em> and Henry Miller’s Tropic of Cancer<\/em>. \u00a0(For more information, see this First Amendment Center article;<\/a> Also, a\u00a02010 film<\/a>\u00a0starting James Franco depicts the trial.)<\/p>\n

Here is part of \u00a0Judge Horn’s opinion:<\/a><\/p>\n

The freedoms of speech and press are inherent in a nation of free people. These freedoms must be protected if we are to remain free, both individually and as a nation…\u00a0These guarantees occupy a preferred position under our law to such an extent that the courts, when considering whether legislation infringes upon them, neutralize the presumption usually indulged in favor of constitutionality.<\/p><\/blockquote>\n

* Smith\u00a0 v. California,<\/a> 1959 \u2014 A bookstore owner\u00a0 who did not know (or had no reason to know) about obscene materials, was not guilty of knowingly selling obscene material. The case expanded the test of \u201cscienter\u201d (guilty knowledge) and averted a chilling effect on distributors who might not know about the contents of materials they handled. It would become an important\u00a0 case as the responsibilities of Internet Service Providers\u00a0 were considered in the 1990s.<\/p>\n

Meanwhile in Britain,\u00a0<\/strong>\u00a0an attempt to codify old Victorian moral codes in a 1959 law went down to defeat in a watershed 1960 trial<\/a> over D.H. Lawrence’s book\u00a0Lady Chatterly’s Lover.\u00a0 \u00a0The book was badly written and not deserving of the defense it got at the trial, argues Peter Hitchens in this 2018 essay<\/a>.<\/p>\n

The Sixties and Obscenity<\/h3>\n

As late as the 1950s and 1960s, obscenity could be defined by local and\u00a0state governments as the use of dirty language rather than any\u00a0 appeal to sexual interest. The freewheeling 1960s and 70s changed many aspects of American and European culture, and comedians were on the vanguard of the change.<\/p>\n

\"\"

Lenny Bruce<\/p><\/div>\n

Lenny Bruce<\/strong><\/a>\u00a0(1925-1966)\u00a0 and his wild, caustic,\u00a0 hilarious routines challenged old concepts of morality and inspired George Carlin, Chris Rock and many others. Bruce was convicted of obscenity many times in city and state courts, and spent his final years struggling with the law.<\/p>\n

Bruce became famous for challenging\u00a0 taboos around language. \u201cHe had extraordinary \u2026 naivete,\u201d said Dustin Hoffman, who played Bruce in the 1974 film Lenny. \u201cHe really felt he was going to be protected under the Constitutional [guarantee of] free speech and that what he was doing was not obscene. And it wasnt, if the defintion is to sexually arouse, that\u2019s not what he was about.\u201d He was convicted of obscenity\u00a0at a\u00a0trial in November 1964 <\/a>over his act at a Greenwich Village cafe. He was pardoned posthumously in 2003 following efforts by author Rollin\u00a0 Collins.<\/a><\/p>\n

Freedman v. Maryland<\/a>, 380 US 51 (1965) \u2014 A film called \u201cRevenge at Daybreak\u201d was shown in a Baltimore theater without first submitting it to a state board of\u00a0 censors for approval. The court found that the censorship process was itself an infringement on the First Amendment, but found that a more timely process might be permissible. In effect, the decision was the end of outright state censorship of nationally distributed films.<\/p>\n

* Memoirs of a Woman of Pleasure v. Massachusetts,<\/a> 1966 \u2014 This involved a book written in 1749 about prostitute Fanny Hill. The Supreme Court said it was not obscene, used this three part test:<\/p>\n

    \n
  1. Roth test (average person, community standards, dominant theme, prurient appeal).<\/li>\n
  2. Had to be patently offensive<\/li>\n
  3. Had to be utterly without redeeming social value.<\/li>\n<\/ol>\n

    The bottom line: <\/em>a work could not be considered obscene if it had\u00a0 any redeeming social value of any kind whatsoever.<\/strong><\/em> After Memoirs, the court began upholding time place and manner restrictions rather than firming up content tests. Note that Miller (below) changed the social value test.<\/p>\n

    Side note for contemporary culture connections: In the film \u201cThe People versus Larry Flynt,\u201d t<\/em>his is the case that the grizzled old printer is referring to when Larry Flint says he wants to print a magazine with nude photos. The printer says: \u201cBut I could get in trouble printing these\u2026\u00a0 there are laws. You gotta have some sort of text, like Playboy does.\u201d
    \n<\/em><\/p>\n

    Ginzburg\u00a0 v. United States<\/a> <\/strong>383 U.S. 463 (1966) On June 14, 1968, Ralph Ginzburg and three corporations he controlled were convicted in a federal\u00a0 district court in Pennsylvania for sending through the mail three obscene publications. The prosecution said that these publications were obscene in the context of their publication, sale and attendant publicity. In finding Ginzburg guilty, the trial judge applied the obscenity standards first used in the Roth v. U.S. case. Evidence that the petitioners deliberately represented the material as erotically arousing and commercially exploited them as erotica solely for the sake of\u00a0 prurient appeal amply supported the trial court\u2019s determination that the material\u00a0 was obscene under the standards of the Roth case.<\/p>\n

    The trial judge\u00a0 sentenced Ginzburg to five years imprisonment and fined him $28,000. Basically, this case upheld state laws against pandering based on erotic appeal or selling material that was considered obscene to minors even if not obscene for adults.<\/p>\n

    Stanley v. Georgia<\/a> 394 U.S. 557 (1969) \u2014 A unanimous court said that the state of Georgia could not send a man to jail for private possession of pornography, even it was illegal to sell the pornography. A person has \u201ca right to satisfy emotional needs in the privacy of his own house.\u201d However, in 1990, however, the Court found that protection for private possession of child pornography was illegal.<\/p>\n

    **<\/strong> Miller v. California<\/a> <\/span><\/strong>(1973) \u2014 New benchmark reflected political changes in the Supreme Court with new\u00a0 Nixon appointees. Community standards replaced national standards, and the court tried to isolate hard core pornography from expression protected by the First Amendment. This is still the main \u201ccontrolling\u201d case in defining obscenity. In Miller, the court said a\u00a0 work was obscene if it:<\/p>\n

      \n
    1. Meets the Roth test <\/strong>(1957, above);<\/li>\n
    2. Describes sexual conduct in\u00a0a patently offensive<\/strong> way; and<\/li>\n
    3. Taken as a whole, lacks serious\u00a0<\/strong>literary, artistic, political or scientific value<\/strong><\/li>\n<\/ol>\n

      ** Pope v. Illinois,<\/a>\u00a0<\/span>\u00a01987<\/strong> \u2014 Attendants at two bookstores in Rockford, Illinois\u00a0 were charged separately with violating an Illinois obscenity statute\u00a0 by selling allegedly obscene magazines. At the trials the jury was instructed to determine\u00a0 whether the magazines were obscene under the Miller test.\u00a0 But the judge made a mistake telling the jury that community standards were the only standards to be used.<\/p>\n

      In the\u00a0 3rd part of\u00a0 Miller test\u00a0 ( which is whether the work taken as a whole lacks serious literary, artistic, political, or scientific value ) the decision has to be objective, not solely based on\u00a0 community standards.\u00a0And so, according to the Supreme Court, the initial decision was not in keeping with the First Amendment.<\/p>\n

      Pope modified Miller to the extent that \u201cserious value\u201d was not simply something\u00a0 that could be determined at the community level, but rather whether a \u201creasonable person\u201d would see a work as obscene. In effect, the community standard of Miller was modified by a national perspective. In\u00a0 practice, it meant that prosecutors and jurors\u00a0 call in experts to help determine whether something has serious value.<\/p>\n

      Interestingly, Pope is one of the major cases\u00a0cited in the Supreme Court oral argument over the “intentional infliction of emotional distress” \u00a0charge in the Flint v Falwell case of 1987.<\/p>\n

      Broadcast indecency<\/strong> — See this page under broadcasting.<\/a><\/p>\n

      Obscenity and the internet \/ web<\/strong><\/h3>\n

      **** Reno v. ACLU<\/a><\/strong>,\u00a0<\/strong> <\/a>1997, The Supreme Court struck down the 1996 Communications Decency Act (CDA), which they said was an unconstitutional\u00a0 attempt to control communications on the Internet. First, t he court said,
      \nthe Internet and the World Wide Web should be considered as having full First Amendment protection, such as the print media, and should not be regulated like radio and television broadcasting. While noting that it was within the government\u2019s power to set \u201ctime place and manner\u201d restrictions on obscene\u00a0 communications, and that obscenity did not have First Amendment protection, the court said that the CDA had problems:<\/p>\n

      Existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults.\u201d The breadth of the CDA\u2019s coverage was unprecedented. Its open-ended prohibitions embraced not only commercial speech or commercial entities, but also \u201call nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors.\u201d Because the CDA did not define the terms \u201cindecent\u201d and \u201cpatently offensive,\u201d the statute \u201ccover[ed] large amounts of non-pornographic material with serious educational value.\u201d Regulated subject matter under the CDA extended to \u201cdiscussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library.\u201d The court found that the law was not narrowly tailored.<\/p><\/blockquote>\n

      \u00a0 Dancing and the first\u00a0 amendment<\/em><\/h3>\n

      Although not a media law issue, some forms of dancing — ranging from topless dancing in the 1960s to lap dancing<\/a> in the modern era — have been defended as artistic expressions that are worthy of First Amendment protection. The courts have backed away from direct bans, and have instead allowed local standards (Las Vegas can be different from Lexington) and time, place and manner regulations (Main street can be different from church street).\u00a0 \u00a0In the video above, a topless bar in Roanoke, Va. met resistance in 1965.\u00a0 Questions about the treatment of women who perform these dances are among the human rights issues raised by exploitation in the sex trades.<\/p>\n

      Pornography as\u00a0 a human rights issue<\/h3>\n

      \"\"<\/a>Although the Roth, Miller and Pope cases more or less ended Comstockery, and the Reno case extended full First Amendment rights to the internet, controversy continues over violent pornography and its impacts.\u00a0 Andrea Dworkin, for example, writes in “Letters from a War Zone<\/a>:”<\/p>\n

      I live in a country where if you film any act of humiliation or torture, and if the victim is a woman, the film is both entertainment and it is protected speech. Now that tells me something about what it means to be a woman citizen in this country, and the meaning of being second class. When your rape is entertainment, your worthlessness is absolute. You have reached the nadir of social worthlessness. The civil impact of pornography on women is staggering. It keeps us socially silent, it keeps us socially compliant, it keeps us afraid in neighborhoods; and it creates a vast hopelessness for women, a vast despair. One lives inside a nightmare of sexual abuse that is both actual and potential, and you have the great joy of knowing that your nightmare is someone else\u2019s freedom and someone else\u2019s fun.<\/p><\/blockquote>\n

      Dworkin and others crafted a law<\/strong> that prohibited violent pornography, which was passed in the city of Indianapolis, IN\u00a0 in 1984 with the support of mayor William Hadnut.\u00a0 It defined pornography\u00a0as “the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following:<\/em><\/p>\n

      \n

      Women … presented as\u00a0sexual objects\u00a0who enjoy\u00a0pain or humiliation; or …\u00a0\u00a0who experience sexual pleasure in being raped; or [are]\u00a0<\/span>\u00a0tied up or cut up or mutilated or bruised or physically hurt, or … [are] dismembered or truncated or fragmented or severed into body parts; or …\u00a0<\/span>\u00a0are presented in scenarios of degradation, injury abasement,\u00a0torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; or …\u00a0<\/span>are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display.”\u00a0<\/span><\/p>\n<\/blockquote>\n

      The law was appealed in American Booksellers Association v. William Hadnut<\/a> in 1985 and struck down\u00a0 by the Seventh Circuit Court as unconstitutional. The court said:<\/p>\n

      Free speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech. Culture is a powerful force of continuity; [the] Indianapolis [ordinance] paints pornography as part of the culture of power. Change in any complex system ultimately depends on the ability of outsiders to challenge accepted views and the reigning institutions. Without a strong guarantee of freedom of speech, there is no effective right to challenge what is.<\/p><\/blockquote>\n

      Dworkin and others responded that the Indianapolis law was not intended to censor expression but rather to protect women from violence in the production of pornography and violence caused by the consumption of pornography. Dworkin’s book, “Pornography and Civil Rights<\/a>,” (pdf) presents their argument.\u00a0 \u00a0Women’s rights advocates continue to oppose violent pornography.<\/a><\/p>\n

      Internet porn and the first Amendment<\/h3>\n

      Following the defeat of the Communications Decency Act in Reno v ACLU in 1997, advocates for restricting the access of minors to porn wrote several major laws that were subsequently challenged.\u00a0 The most significant challenge was in\u00a0 Ashcroft v. ACLU<\/em><\/a> (2004) which struck down a federal law that was meant to keep minors from\u00a0 viewing pornography on the internet.\u00a0 The court’s concern was this:<\/p>\n

      “Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid, R. A. V.<\/i>\u00a0v.\u00a0St. Paul,<\/i>\u00a0505 U. S. 377, 382 (1992),<\/a>\u00a0and that the Government bear the burden of showing their constitutionality,\u00a0United States<\/i>\u00a0v.\u00a0Playboy Entertainment Group, Inc.,<\/i>\u00a0529 U. S. 803, 817 (2000)<\/a>. This is true even when Congress twice has attempted to find a constitutional means to restrict, and punish, the speech in question.”<\/p><\/blockquote>\n

      Free Speech Coalition v Paxton<\/a><\/strong>(2025),\u00a0 the Supreme Court affirmed a Texas law meant to ensure that minors under age 18 are not exposed to pornography on the internet, and that all people attempting to access porn sites prove their age.\u00a0 \u00a0The decision held that the Texas law “survives review under intermediate scrutiny because it only incidentally burdens the protected speech of adults.”\u00a0<\/em><\/p>\n

      See Amy Howe,\u00a0 Court allows Texas\u2019 law on age-verification for pornography sites,<\/a> SCOTUS Blog, June 27, 2025.<\/p>\n

      \n

      Further READING<\/h3>\n

      National Archives<\/strong>, The Comstock Act<\/a>, 1873,\u00a0 and The anti-contraception campaign (Woman Rebel newspaper)<\/a>, 1914.<\/p>\n

      Music and Obscenity<\/strong> — \u00a0The story of Parent’s Music Resource Center by Newsweek.<\/a> Sept. 16, 2015.<\/p>\n

      Ross Douthat, Let’s Ban Porn,<\/a><\/strong> New York Times, Feb. 10, 2018.<\/p>\n

      Michelle Goldberg, How Trump helped make Andrea Dworkin relevant again,<\/a><\/strong>Feb. 23, 2019. New York Times.<\/p>\n

      Ian Millhiser, “A 19th-century anti-sex crusader is the \u201cpro-life\u201d movement\u2019s new best friend;<\/a> Anthony Comstock, the 19th-century scourge of art and sex, is suddenly relevant again thanks to Donald Trump\u2019s worst judge,” Vox, Apr 12, 2023, 12:15 PM EDT<\/p>\n","protected":false},"excerpt":{"rendered":"

      In early January, 2026, the sudden emergence of thousands of non-consensual\u00a0 AI deepfake sex videos created an uproar over regulation of services like xAI’s Grok. Posting non-consensual sex images (sometimes called \u2018revenge porn\u2019) is illegal in the\u00a0US,\u00a0EU,\u00a0UK,\u00a0Brazil,\u00a0India, and\u00a0Australia,\u00a0\u00a0but how the … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"parent":0,"menu_order":9,"comment_status":"closed","ping_status":"closed","template":"full-width-page.php","meta":{"footnotes":""},"class_list":["post-45","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/pages\/45","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/comments?post=45"}],"version-history":[{"count":6,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/pages\/45\/revisions"}],"predecessor-version":[{"id":7495,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/pages\/45\/revisions\/7495"}],"wp:attachment":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/media?parent=45"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}