Obscenity

There is no First Amendment protection for obscene speech. Obscene speech is commonly manifested in adult theaters and bookstores, stores that sell sexual devices and other commercial business that are sexual in nature. The courts have sought to define obscenity, but it is up to each community to determine whether the "speech" at issue is obscene.

Sidebar: Materials must be viewed as a whole to determine whether they are obscene. Materials that appeal to the prurient interest and have no serious literary, artistic, political, or scientific value are obscene and may be regulated. This standard is known as the "utterly without redeeming social value" test. A "prurient interest" is an interest in "material having a tendency to excite lustful thoughts."

States may regulate obscene material and its commercial exposure to consenting adults as well as minors. Thus, X-rated bookstores may be constitutionally prohibited from operating within city limits, for example. In many communities, the sale of sexual devices is illegal. In those jurisdictions, manufacturers may not advertise the devices since the advertisement encourages an illegal transaction.

Can I have pornographic movies in my house?

Yes. You are not prohibited from private possession of obscene materials. However, child pornography is never protected and may not be legally owned in any circumstance.

Can a city enact an ordinance outlawing "gangster rap" from being played at skating rinks, bowling alleys and other public places of entertainment where children are present?

No. Music, as a form of expression and communication, is protected under the First Amendment. It is inconsequential if the music takes on an unpopular or even dangerous viewpoint.

Sidebar: The argument that the government has a role in helping parents to be the guardians of their children's well-being is not a basis for regulations restricting what minors read, hear and view.

How do I determine if my artwork is obscene?

Your artwork is obscene if three requirements are met:

• the average person, applying contemporary community standards would find the work, taken as a whole, appeals to a prurient interest in sex;
• the work depicts or describes in a patently offensive way, sexual conduct specifically defined in a law prohibiting obscene materials; and
• the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

I run a used bookstore. Can the city require me to keep books containing sexual content behind the counter because minors might look at them?

No, not if the books have serious literary, artistic, political or scientific merit. Further, you are not required to keep the books in an "adult" section of your store or prohibit minors from entering the premises.

Books such as "Lolita," "Sanctuary," "Of Mice and Men," "The Catcher in the Rye," "Portnoy's Complaint," and "Joy of Sex," are not subject to regulation because a reasonable person could conclude that those works clearly have literary and educational merit for minors.

There is no serious literary merit in publications (such as adult comic books) that contain acts of sexual intercourse, oral sodomy, masturbation, excretory functions, sadism, masochism and lewd exhibition of the genitals.

Sidebar: Works of serious literary merit are never obscene, and unless a work is obscene, it is protected by the First Amendment.

I carry sexually explicit "adult" materials in my bookstore. Can the city regulate who gets to look at the materials and how they are displayed?

Yes. "Adult" materials can be regulated to protect minors even if an adult would not consider those same materials obscene. For example, a city can require magazine seller to cover up the bottom two-thirds of Playboy magazine if it is displayed on a rack.

Forcing retailers to cordon off or create "adult" sections for sexually explicit material is allowed under the First Amendment because an adult's right to browse the material is not being restricted; the right is only slightly burdened.

The First Amendment protects the right of your local video store, though frequented by children and minors, to carry adult videos. However, the city is allowed to enact ordinances requiring the store to keep the videos in a separate area that is not freely accessible to minors. The idea is to balance the right of an adult to choose a sexually explicit video against the right of communities to restrict materials that may be harmful to minors.

Obscene videos are not protected because they automatically fall outside First Amendment protections (as are fighting words and true threats). Since most cities prohibit the sale of obscene materials, those videos could be seized and taken from the store by law enforcement.

If I can sell adult videos in my store, why can I not sell "sex toys"?

Sexual toys and devices are obscene according to holdings by the U.S. Supreme Court. The First Amendment does not protect obscenity, so the sale and dissemination of the devices can be regulated or even "outlawed." Although an adult is free to have obscene materials, including sexual devices, in his or her home, he or she is not free to sell or give them to people.

Can an ordinance be enacted that prevents local stores from allowing minors to play graphically violent video games on display units?

No. The First Amendment prohibits the regulation of books, movies, video games and other media based on their content.

Content can be regulated only in instances where a "compelling interest" exists. For instance, there are laws prohibiting publishing harmful lies about another person because the government has a compelling interest in protecting the public from false accusations.

Video games can be regulated based on their content if there is a compelling interest in restricting access. Typically, the argument posed is that graphic violence in a video game (song, movie, etc.) leads to aggressive and violent behavior in the viewer or user. However, the argument only works if there is actual strong and compelling evidence that the violent behavior will result from watching the video. A mere belief that violent video games encourage violence in children is not enough.

Sidebar: The possibility of potential harm is never compelling enough to permit restrictions on your right to free speech under the First Amendment.

Why are brothels illegal and "escort services" are not?

The First Amendment does not protect commerce in sexual activity. Thus, the brothel owner cannot argue his or her free speech right to express himself or herself is being limited. Since the escort service is, arguably, not selling sexual services, the First Amendment protects it from regulation. The escort service can be regulated to the extent any other business can be and must abide by certain laws such as operating in commercially zoned areas only.