Obscenity Law Fact Sheet
Federal Law
Current federal law prohibits distribution of obscene material (hardcore pornography) via the
Internet, cable/satellite TV, hotel/motel TV, common carriers such as FedEx and UPS, through
the mail, and in retail establishments. The U.S. Department of Justice has refused to indict on
any new obscenity cases since 2008, but of course, that does not change federal law. In fact,
the DOJ did prosecute an obscenity case indicted by the previous administration and got a
conviction in Los Angeles in 2012; this case involved distribution via the Internet.
The ninety-three U.S. Attorneys (each state has at least one) enforce federal obscenity laws. FBI
agents, postal inspectors and customs officers investigate violations of federal obscenity laws
including:
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18 U.S.C. 1461 – Mailing obscene matter;
18 U.S.C. 1462 – Importation or use of a common carrier to transport obscene matter;
18 U.S.C. 1464 – Broadcasting obscene language;
18 U.S.C. 1465 – Interstate transportation of obscene matter;
18 U.S.C. 1466 – Wholesale and retail sale of obscene matter which has been
transported in interstate commerce;
18 U.S.C. 1468 – Distribution of obscene matter by cable or satellite TV;
47 U.S.C. 223 – Making an obscene communication by means of telephone Sections
1462 and 1465 cited above also prohibit distribution of obscenity on the Internet.
State Law
Virtually every state has its own obscenity laws which prohibit intrastate retail distribution of
obscene material. An exception is Alaska, which does not have a general obscenity statute but
does have several obscenity statutes relating to minors.
Obscenity: Not Constitutionally Protected Speech
Obscenity is not within the area of constitutionally protected speech or press. Several court
decisions are relevant, particularly:
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Chaplinksy v. New Hampshire, 315 U.S. 568, 571-572 (1942)
Roth v. United States, 354 U.S. 476 (1957)
Miller v. California, 413 U.S. 15, 34 (1973)
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The First Amendment was intended to protect ideas and debate, not obscene material. In Miller
v. California, 413 U.S. 15, 34 (1973), the Supreme Court said: “[T]o equate the free and robust
exchange of ideas and political debate with commercial exploitation of obscene material
demeans the grand conception of the First Amendment and its high purposes in the historic
struggle for freedom. It is a ‘misuse of the great guarantees of free speech and…press.’”
More recently, in Ashcroft v. ACLU, 535 U.S. 564 (2002), the Supreme Court rejected a
constitutional challenge to application of obscenity laws to the Internet.
Defining Pornography and Obscenity
The word pornography is a generic term, not a legal term. Because of this, it is presumptively
protected unless shown otherwise. However, if the pornography is obscene it is not protected.
A jury needs to determine if the pornographic material is legally obscene, but that does not
prevent law enforcement from taking action.
If law enforcement suspects pornography is being created or distributed, those involved can
still be arrested, and if the court finds the material to be obscene they will be convicted. It does
not matter at the time of arrest that a particular material had not been judicially determined
obscene. This is the same way other types of forbidden speech are prosecuted. Blackmail or
true threats made are both forms of speech, but if the jury finds that the speech in question
was blackmail or a threat, the speaker will be convicted of a crime.
Obscene pornography is not “legal” or “protected” speech just because a court has not yet
determined it obscene. If obscenity laws are enforced against the producer or distributor of this
material they will be convicted of a crime.
In Miller v. California, the Supreme Court stated that any material that depicts or describes
“hardcore sexual conduct” could be found obscene under its three-prong test. The Court's
examples of such “hardcore” conduct were set out in Miller, 413 U.S. at 25:
“It is possible, however, to give a few plain examples of what a state statute could
define for regulation under part (b) of the standard announced in this opinion:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or
perverted, actual or simulated.
(b) Patently offensive representation or descriptions of masturbation, excretory
functions, and lewd exhibition of the genitals.”
In a legal sense, therefore, obscenity may involve either simulated sex or involve explicit actual
sex and either type can be found obscene in any given community.
However, the term “hardcore pornography” refers to explicit materials that depict actual sex
acts and show penetration clearly visible (PCV). It is pornography that presents the “hardcore”
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depiction of “hardcore” conduct. The term “hardcore pornography” or “hardcore porn” is also
used in the public domain, in the courts, and in the pornography industry, to refer to
“hardcore” films, videos, images, and magazines that show penetration and ejaculation. The
Supreme Court has considered this explicit type of “hard-core pornography” as material that
clearly fits within the category of obscenity and it lacks constitutional protection. See Mishkin
v. New York, 383 U.S. 502, 508 (1966).
Notes:
The Court in Miller v. California, 413 U.S. at 29, described its test as “concrete guidelines to
isolate ‘hardcore’ pornography from expression protected by the First Amendment.”
The Court also held in Miller, at 23, that: “This much has been categorically settled by the Court,
that obscene material is unprotected by the First Amendment.”
In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57 (1973), the Court also stated: “We categorically
disapprove the theory . . . that obscene, pornographic films acquire constitutional immunity . . .
simply because they are exhibited for consenting adults only.”
In United States v. 12 200-Ft. Reels, 413 U.S. 123, 128 (1973), the Court reaffirmed that:
“We have already indicated that the protected right to possess obscene material in the
privacy of one’s home does not give rise to a correlative right to have someone sell or
give it to others. . . . Nor is there any correlative right to transport obscene material in
interstate commerce.”
Again, id. at 129, the Court found: “The Constitution does not compel, and Congress has not
authorized, an exception for private use of obscene material.”
In an earlier case, the Court repeated its holdings that: “[O]bscenity is not within the scope of
First Amendment protection. Hence, Congress may . . . declare it contraband. . . .” United
States v. Thirty-seven Photographs, 402 U.S. 363, 376-77 (1971).
The Supreme Court has recognized that obscenity and child pornography laws are still in effect,
both for physical transfers and electronic transfers, noting in Reno v. ACLU, 521 U.S. 844, 878 n.
44, 117 S.Ct. 2329, 2347 n. 44 (1997), that: “Transmitting obscenity and child pornography,
whether via the Internet or other means, is already illegal under federal law for both adults and
juveniles.”
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