The obscenity exception to the First Amendment

Obscenity — which even we cannot define with precision — is a hodge-podge. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.

— Justice William O. Douglas (dissenting in Miller v. California, 1973)

“Obscenity” is not protected by the First Amendment, but what speech does that include? Its definition has confounded many through the years, most famously Justice Potter Stewart, who in a concurring opinion in Jacobellis v. Ohio (1964) wrote that he could not intelligibly define it, but “I know when I see it, and the motion picture involved in this case is not that.” Four years later in Interstate Circuit v. Dallas (1968), Justice John Marshall Harlan II called it “the intractable obscenity problem.”

Although difficult to define, the Supreme Court narrowed the category considerably over time. While obscenity used to cover D.H. Lawrence and James Joyce novels, today, it is most often targeted toward perceived hard-core pornography. 

Early history of ‘obscenity’ in the courts

Early American courts used the so-called Hicklin test from the old English case Regina v. Hicklin (1868) to determine whether material was obscene. Under this test, the key question was whether “the tendency of the matter . . . is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” Under the Hicklin test, judges examined the effect of isolated passages of a work upon particularly susceptible persons. When British authorities were ordered to destroy copies of the 55th republished edition of The Confessional Unmasked; Shewing the Depravity of the Romanish Priesthood, the Iniquity of the Confessional and the Questions Put to Females in Confession, an anti-Catholic treatise, a British court held that the work was obscene.

Serious literary works, such as D.H. Lawrence’s Lady Chatterley’s Lover and Theodore Dreiser’s An American Tragedy, were deemed obscene by the Postmaster General and courts based on objectionable passages in the book. The books contained too frank a discussion of sexual matters for puritanical minds. However, U.S. District Court Judge John M. Woosley in United States v. One Book Called “Ulysses” (1933) determined that James Joyce’s famous book was not obscene. As Judge Woosley explained: “the book Ulysses in spite of its unusual frankness, I do not detect anywhere the leer of the sensualist. I hold, therefore, that it is not pornographic.” The U.S. Court of Appeals for the Second Circuit affirmed Judge Woosley’s decision in an opinion authored by Judge Augustus N. Hand. However, as a lower court decision, it did not have precedential impact over all other U.S. courts. Other lower courts continued to use the Hicklin test.

FIRE Chief Counsel Robert Corn-Revere, in his book The Mind of the Censor and The Eye of the Beholder: the First Amendment and the Censor’s Dilemma (2021), documents how the infamous, New York-based anti-vice crusader Anthony Comstock used the Hicklin test in many cases to suppress materials he found inappropriate or objectionable. Corn-Revere explains that the Hicklin test “became the prevailing standard in American law for three-quarters of a century until the Court finally abandoned it in 1957 because of evolving First Amendment concerns.”

So to Speak podcast: ‘The Mind of the Censor’ with Robert Corn-Revere

Robert Corn-Revere joins host Nico Perrino to discuss how censors operate and why they never occupy the moral high ground.

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Supreme Court and modern definitions of ‘obscenity’

The Supreme Court developed a different test for identifying obscenity in Roth v. United States (1957) when examining a federal law that prohibited the mailing of any material defined as “obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character.” 

Writing for the majority, Justice William Brennan wrote that “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” He noted that obscenity had roots in early British and American anti-blasphemy and anti-profanity laws. Brennan determined that “obscenity is not within the area of constitutionally protected speech or press.” 

However, Brennan recognized that “sex and obscenity are not synonymous” and that sex “has indisputably been a subject of absorbing interest to mankind through the ages.” Brennan and his colleagues ultimately formulated the so-called Roth test for obscenity: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” 

This was an improvement over the Hicklin test in two ways. First, a reviewing judge examined the material under a reasonable person standard rather than identify the impact of the work on the most immoral or least susceptible person. Second, the material was judged by its “dominant theme” and the work as a whole rather than by isolated passages.

Modern efforts to target drag shows and remove books from library shelves have their roots in the same impulses that inspired obscenity laws — the obsessive desire to censor materials that are perceived to be harmful. 

The Court was not unanimous in this decision: For Justices William O. Douglas and Hugo Black, who dissented, the Court’s holding in Roth did not do nearly enough to protect free expression. Douglas, an ardent First Amendment defender, accused the majority of “giv[ing] the censor free range over a vast domain.” 

Their warnings proved prescient as the Court continued to struggle balancing obscenity against First Amendment rights in the years to come. Nine years later, in Memoirs v. Massachusetts (1966), a plurality of three justices of the Court adopted a different test that had three parts: 

(1) the dominant theme of the material taken as a whole appeals to a prurient interest in sex;

(2) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters;

(3) the material is utterly without redeeming social value. 

Because a majority of the Court did not recognize a singular test, the justices began a process in Redrup v. New York (1967) where they would often reverse obscenity convictions in per curiam decisions without an opinion. This was known as “Redruping.” However, Redruping was not an effective method of resolving cases because there was no clear legal test or standard for all involved. At some point, the Court needed to provide a consistent test for obscenity.

Testing for obscenity

Finally, in Miller v. California (1973), a sharply-divided Court developed a test for obscenity, which Chief Justice Warren Burger identified as guidelines for jurors in obscenity cases. The so-called Miller test consists of three parts:

Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;

Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Marvin Miller, who owned a mail-order business in California, was charged with violating a California obscenity law for mailing a brochure advertising sexually explicit material. Miller’s attorneys argued that there must be a national standard for obscenity. Otherwise, a seller of sexually oriented material in California might be subject to obscenity laws in more restrictive communities across the country. But Chief Justice Burger rejected the need for a national standard, writing that it “is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City.” Chief Justice Burger believed that more conservative communities should be able to ban materials that were too explicit for their community morals. 

In another obscenity case that term, Paris Adult Theatre I v. Slaton (1973), the Court upheld a Georgia obscenity law 5-4 as applied to adult movie theatres frequented by consenting adults. The Court reasoned that “there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby.” 

Ironically, Justice Brennan — the author of the Court’s opinions in Roth v. United States and Memoirs v. Massachusetts — changed course and ruled that he could no longer support obscenity laws. In his Paris Adult dissent, Brennan wrote that “the concept of ‘obscenity’ cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials.”

The first two prongs of the Miller test — the prurient interest and patently offensive prongs — are judged by contemporary community standards, that is by members of the juries that decide obscenity cases. However, the Court clarified in Pope v. Illinois (1987) that the last prong of the Miller test — the so-called SLAPS prong (no serious literary, artistic, political or scientific value) is evaluated under a national standard, noting that “the proper inquiry [is] whether a reasonable person would find such value in the material.”

Obscenity and age-verification laws

Much litigation over sexually oriented materials does not involve a strict application of the Miller test. Instead, it focuses on whether the material falls under a “harmful to minors” law.  In Ginsberg v. New York (1968), the Court approved of the concept of variable obscenity — that material could be constitutionally protected for adults but obscene as to minors. Thus, nearly every state has a harmful to minors statute on the books. More recently, in Free Speech Coalition v. Paxton (2025), the Court upheld a Texas law that requires age-verification for sites featuring adult content, reversing decades of legal precedent that protects the free speech rights of adults to access information without jumping over government age-verification hurdles. 

FIRE statement on Free Speech Coalition v. Paxton upholding age verification for adult content

The Supreme Court upheld Texas's age-verification law for sites featuring adult content, reversing decades of precedent that protected the free speech rights of adults.

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The problem with age-verification laws is they place a burden on every consumer — adults included — to access constitutionally protected speech. And verifying your age online is different from simply flashing a driver’s license to someone behind a counter because it usually means handing over government identification for a platform or verification service to copy, entering the last four digits of your Social Security number, or even submitting to biometric facial scanning. 

FIRE filed an amicus “friend-of-the-court” brief in Paxton, arguing that government efforts to restrict adult access to constitutionally protected information must be carefully tailored, and that Texas’ law failed to do so. As FIRE Chief Counsel Robert Corn-Revere said in response to the Court’s ruling in Paxton: “Americans will live to regret the day we let the government condition access to protected speech on proof of our identity. FIRE will fight nationwide to ensure that this erosion of our rights goes no further.”

Conclusion: The obscenity ‘myth’?

Obscenity law still matters. In her article The Myth of Obsolete Obscenity, Law professor Jennifer Kinsley points out that obscenity prosecutions still occur at the state and local level. In 2025, Sen. Mike Lee once again introduced his Interstate Obscenity Definition Act to make it easier for prosecutors to target online pornography. Furthermore, modern efforts to target drag shows and remove books from library shelves have their roots in the same impulses that inspired obscenity laws — the obsessive desire to censor materials that are perceived to be harmful. 

There is constant pressure to expand the list of unprotected categories. For example, in Brown v. Entertainment Merchants Association (2011), the state of California argued that violent video games were akin to obscenity. The Court rejected the idea of violence as obscenity. Justice Scalia explained for the Court: “Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct.’”