Obscenity Not Constitutionally Protected In United States

The Supreme Court has held that obscenity is not constitutionally protected in the United States and on the internet. Since 1957, a number of Supreme Court cases have helped to define what is considered obscenity and what is not. Two major cases are discussed as well as the continuation of the influence of these decisions on the World Wide Web and internet publishing standards continue to reflect the flavor of the legal defining in 2007.
In 1957, both the Supreme Court of the United States and the State Supreme Court of the State of California were to hear cases regarding matters of obscenity. In the matter, Roth v. United States, a book publisher was charged with violation of federal obscenity statutes. The second case, Alberts v. California, an owner of a mail order business was charged with soliciting the public in an effort to sell obscene and indecent material. The question turned on whether the statutes violated the First Amendment’s guarantee of free speech and the Fourteenth Amendment guarantee of due process citing vague and ambiguous language of the statutes claiming that no reasonable person could interpret or conform to the law. In both cases the statutes were upheld and it was determined that not all forms of expression especially those considered obscene are guaranteed by the Constitution. Obscenity laws are designed to protect the morals of the people and that the wording of the statutes gave adequate notice of the types of conduct prohibited. Further, the court went on to support the test of obscenity being whether or not the average person applying community standards would approve.
These cases effectively established the broad rule that obscenity is not constitutionally protected. However, the definition of obscenity remained at issue.
In the new computer age there are renewed issues of pornography and especially child protection against that which is considered to be morally repugnant use of children and sexuality for perverse adult pleasure. And with good reason, in the United States, child pornography is illegal. Recent legislation has arisen with the advent of the internet and World Wide Web of home computers and e-business which is electronic commerce.
The Child Online Protection Act, 47 U.S.C. 231 note, ("COPA"), as amended, established a temporary, 19-person Commission to study methods and technologies to help reduce access by minors to material on the World Wide Web that is harmful to minors.
On April 16, 2002, the Supreme Court in a 6-3 decision struck down the Child Pornography Prevention Act of 1996 (or more precisely, upheld the 9th U.S. Circuit Court of Appeals' 1999 First Amendment objection to it) on the grounds that it was "unconstitutionally vague and far-reaching." This decision does not affect laws prohibiting actual child pornography.
Currently, Child Abduction Prevention Act and the Child Obscenity and Pornography Prevention Act of 2003, Violence Against Children Act of 2003, and Video Voyeurism Prevention Act of 2003. Still other similar legislation such as Lifetime Consequences for Sex Offenders Act of 2003 and most importantly Child Obscenity and Pornography Prevention Act of 2003 are currently introduced in the House are meant to strengthen penalties for those convicted of crimes against children and issues of pornography as a strategy to reconstruct the 2002 laws that were held to be unconstitutional. This is primarily due to efforts on the part of Attorney General Ashcroft. We will continue to look to the Courts as the only true guide to defining what is or is not considered to be obscene or decent in the United States while maintaining our closely held views of morality in the age of the internet. Obviously, as adults we have established what we will and will not tolerate personally in our everyday life and the Courts will continue to establish the legal limits which we can entertain such notions. Law enforcement, of course, will continue to enforce these legal limits. These laws that serve to guide us on matters of obscenity are simply a continuation on the reasonable test of normal persons. It does seem to be an improvement in efforts to protect children but there is further room for improvement in the United States on this matter.