Freedom of Speech and Obscenity: Fuck You Too

In modern culture, obscene material is readily advocated against, with charges such as inducing harm and being damaging to the moral of society, as well as leading people to perform illegal or immoral actions. However, the majority of these arguments ignore the core idea: regardless of causation of illegal deeds, should obscene material be censored as an idea? According to Amy Adler’s essay “Post-Modern Art and the Death of Obscenity Law” published in the Yale Law Journal, the Supreme Court ruled in Miller v. California that obscenity can be easily tested for as a pre-requisite for protection, or lack thereof, under freedom of speech, but what exactly is obscene? Obscenity is a noun that, according to the Merriam Webster Online Dictionary, is defined as “abhorrent to morality or virtue; specifically: designed to incite to lust or depravity”. However, many free speech advocates such as Amy Adler, Louis Henkin, and David Richards argue that protection of ‘obscene’ materials currently considered as exempt should be covered by the freedom of speech amendment, since obscenity cannot fall under a singular test, the concept of liberties becoming moot if unable to be properly exercised, and the need to protect art considered obscene due to social values changing over time (Adler, Richards, Roth vs United States).


Lee Professor of Law at William and Mary law school William van Alstyne argued in the California Law Review that free speech overall is a misleading reason for obscene speech to be protected, arguing that:

“Historically our judges have tended generally to honor the apparent rigor of the free speech clause most when it least mattered and least when the judges were most seriously tested. In relatively tranquil times, the words of the first amendment have been given considerable force. In times of national anxiety and widespread xenophobia, on the other hand, the same words have frequently been given little more than a dismissive acknowledgment” (Alstyne, 109).

The variable amount of protection given to speech that would otherwise be deemed essential, Alstyne argues, is a valid reason for the first amendment to not unequivocally defend all speech. Furthermore, he points out the specific wording of the First Amendment as prohibiting Congress from the formation of any laws that abridge free speech; the actions of the judicial system, which often acts in parallel to Congress, are not precluded from this proscription. However, Alstyne does allow for the fact that “what kind of speech is involved (e.g., whether political or commercial, private or public, obscene or religious) is, on the face of the amendment, not a question” (112). Therefore, a reasonable conclusion, Alstyne says, is that there must be a test of some sort to determine if speech were protected or not (114).

Published in the Yale Law Journal in 1990, Professor of Visual Art at University of California Amy Adler explored and argued against the ideas set down in Miller v. California that placed much of obscenity and exemptions from freedom of speech under the idea of having a test that could determine if a work were truly obscene. A single test, called the Miller test after the legal precedent, could therefore determine that if a reasonable person finds that the work is obscene in nature, the work showed something overly sexual in a way that’s clearly offensive, and if the work overall had no serious value to literature, the arts, politics, or science, then it could be held to be obscene. Specifically, Adler stated that “Miller v. California set forth a three-part test for determining whether a given work should be labelled “obscene”: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” (Adler, 1361). However, artistic work, by its very definition attacks the standards that society holds, and is seeking to constantly violate boundaries, and thus challenges any all-encompassing definition that is put to it. Sexual artists such as Finely and Kern, both prominent in the sex worker and performer fields, would be considered unprotected according to the Miller test, because, as Adler said, “these standards would offer no protection to Finley or Kern. Their work would find protection only under the serious value prong of the test, and that prong, as this Note has argued, offers little protection to Post-Modern art. Here is where the real danger of the Miller test emerges, for its wording does not even contemplate the possibility that this kind of art exists” (Adler, 1372). Protection as granted to art must encompass all forms of art, and should leave room for interpretation as to what is truly art, else the lack of defense would implicitly act to shut down creative works and slow societal cultural advancement out of fear.

This lack of protection acts directly against the interests of a freedom of speech; while many argue that obscene speech deserves the censure it receives, others such as Professor Emeritus at Columbia Law School Louis Henkin and Professor of Law at New York University David Richards argue that the censure given to them deprives the artists of the liberty to create such work. Richards gives specifically the contextually obscene example of epithets, which are slurs and other obscene words. While in educated circles they are used as “conventionalized ways of expressing attitudes of disgust and contempt which depend for their sometimes shocking and bracing effect on the impropriety of their use”, other circles such as the military use them “not to signify extreme disgust but, rather, as a kind of manly, transgression-braving vocabulary whose use is a criterion of intimate membership in the group” (Richards, 50). Depriving them of the ability to decide for themselves in which context the ‘obscene’ words carry impact and what role they serve denies people the freedom and liberty of choice, is more explicitly understood as a lack of constraints against the action. Liberty of thought, expression, and political rights are considered fundamental, meaning in this context essential or inviolable, in the sense that they must always be a liberty. Richards explicitly states on the idea of liberty that “Liberty for A to do X implies the absence of constraint, either to do or not to do X; obviously, the existence of various rights and liberties is an important generalized means enabling each person to pursue his particular ends, whatever they may be”. In other words, once granted a liberty, a person must be able to make their own free decision on how to exercise that liberty, even to the extent that they choose not to use it; if a person fears constraints, then they do not truly possess that liberty, and cannot achieve their goals, whatever they are.


Richards and Adler do not stand alone in their defense of currently obscene materials and the protection they lack and desperately need. In the case of Roth vs. United States, a case handled by the Supreme Court, Chief Justice Warren and Justice Douglas both argued that obscenity, as a social issue, is clearly existent and visible from the 48 state and federal laws that act against it. However, the acknowledgement of the problem does not mean that it should be dealt with by any means necessary, and based on historical action against art that was at the time obscene or controversial, it is in the interest of the people to consider more strongly the freedom of speech guaranteed by the 1st and 14th amendment. Chief Justice Warren says specifically that “the history of the application of laws designed to suppress the obscene demonstrates convincingly that the power of government can be invoked under them against great art or literature, scientific treatises, or works exciting social controversy,” depriving society in many cases of necessary dialogue or impeding artistic and social progress. Justice Douglas furthered the idea that the government’s power to censor ideas and artistic expression may be too over-reaching, and grants the courts to act against activity that may not even be unlawful. The laws as they stand, he said, “allow the State to step in and punish mere speech or publication that the judge or the jury thinks has an undesirable impact on thoughts but that is not shown to be a part of unlawful action is drastically to curtail the First Amendment”. A governmental reach to shut down ideas or punish the artist who made them sets a dangerous precedent, allowing authorities to act upon speech that is otherwise protected, such as criticism of political parties, by declaring it obscene. Freedom of this kind of censure would lead to an echo chamber of ideas considered acceptable, and could potentially lead to a positively Orwellian level of control of citizenry and their thoughts.

The freedom from censure cannot, however, be only granted partially to materials considered artistic or obscene when presented in public, argues Jennifer Kinsley, attorney at Law. The Supreme Court has ruled, even before the Miller case, that private possession of obscene material was not illegal, and cannot become illegal. In the 1960s, when Robert Stanley was arrested, he was charged and convicted of possession of obscene material. However, the Supreme Court upheld his appeal that freedom from governmental intrusions is fundamental, so his owning obscene materials cannot be criminal. When Robert filed his appeal for the trial of possessing obscene material, the court primarily overturned the original conviction “because the right to be free from unwanted governmental intrusions into the home is fundamental and because the First Amendment protects the right to receive information and ideas, Stanley could not be convicted of a crime for merely possessing obscenity” (Kinsley, 109) In 1968, the Court stated again that the right to sexual privacy includes the right to possess obscene material in private. More specifically, Stanley was not using his right to control his home, but rather the right to be free from governmental control of his thoughts. While it was important that the obscene material was in his home, it was more important that freedom of thought apply to human sexuality. Kinsley explicitly states, “Stanley was not asserting the right to maintain dominion over his homestead but instead the right to be free from governmental control of his mind and thoughts” (Kinsley, 111). Confirming the right to private possession of obscene materials was an important precedent to set, as it allowed prevented future courts from gathering potentially illegal data on a person inside of their own residence, then placing morally based charges against them that would be difficult to appeal without significant struggle.


Obscenity is a murky branch of free speech, partially cleared by the Miller test, but one that remains troublesome to this day. By offering obscene art and other potentially obscene forms of speech protection under the first amendment, we allow ourselves to judge ideas on their own merit instead of thought the variant and subjective lens of morality. As a society, and as a judicial system, we must put aside our own biases to judge seemingly obscene material as a necessary counterbalance to our own actions, and embrace it so that the liberty of free speech may remain a liberty by preventing censure of ideas. Society’s constantly evolving view on morality means that a single test for additive art will rapidly become obsolete as well as be challenged by the nature of art to defy authority and rules.


Works Cited

Adler, Amy M. “Post-Modern Art and the Death of Obscenity Law.” The Yale Law Journal 99.6 
 (1990): 1359–378. JSTOR. Web. 27 Jan. 2015.

Alstyne, William Van. “A Graphic Review of the Free Speech Clause.” California Law Review 
 70.1 (1982): 107–50. JSTOR. Web. 17 Mar. 2015.

Henkin, Louis. “Morals and the Constitution: The Sin of Obscenity.” Colombia Law Review 63.3 (n.d.): 391–414. JSTOR. Web. 25 Jan. 2015. <http://www.jstor.org/stable/1120595>.

Kinsley, Jennifer M. “Sexual Privacy In The Internet Age: How Substantive Due Process Protects Online Obscenity.” Vanderbilt Journal Of Entertainment & Technology Law 16.1 (2013): 103–131. Academic Search Complete. Web. 12 Feb. 2015.

Merriam-Webster.com. Merriam-Webster, 2015. Web. 13 January 2015.

Richards, David A.J. “Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment.” University of Pennsylvania Law Review 123.1 (n.d.): 45–91. JSTOR. JSTOR. Web. 12 Feb. 2015.

Roth vs. United States. Supreme Court. 24 June 1957. Google Scholar, n.d. Web. 27 Jan. 2015. <http://scholar.google.com/scholar_case?q=obscenity+law&hl=en&as_sdt=6,48&case=1
 4778925784015245625&scilh=0>.