Libido: Naked Brunch: Un-Banning Books
Preserving America’s Erotic Heritage

How the courts of the United States came to extend
First Amendment guarantees to include pornography.

Part 7
Now What?

By Jack Hafferkamp

Since the chief justice chair passed to William Rhenquist in 1986, the United States Supreme Court has been in a kind of uneasy stasis on the question of obscenity, stuck between obscenity rulings that are quite liberal and a Supreme Court and a Congress that are much more conservative and increasingly restive on the subject.

Since 1973 we have lived under what is known as the "Miller Standard" for determining obscenity. It consists of three tests. To be obscene, a work’s dominant theme must be prurient, it must offend contemporary community standards and it must lack serious literary, artistic political or scientific value. This is known as the "three-pronged approach" to determining obscenity.

Nadine Strossen

To be obscene a work must fail all three of the tests. This means that a work may be sexual in theme and offensive to some people, but if it has "serious" literary, artistic, political or scientific value it can not be banned. In her book Defending Pornography, American Civil Liberties Union President Nadine Strossen notes, with some ironic humor, that lawyers refer to the last point the "SLAPS test."

We have come to take the Miller Standard’s relatively liberal freedoms for granted because after nearly three decades they seem so familiar and easy. We can read pretty much what we want, buy condoms and other birth-control supplies freely, we can see sexy stuff on our cable TV, we can dial up 900 numbers for phone sex or we can call up live companions from the pages of escort ads in the Yellow Pages. We can order up dildos and vibrators from mail order houses. We can look at pictures of naked people on the internet.

But, of course, none of this means we have these rights are inalienable. There are plenty of people out there who think we were better off with Comstockery -- neo-Victorian feminists, the religious right, politicians eager for an emotional issue, and even middleclass parents who are confused and afraid of exposing their children to what they fear is harmful material. Worried parents and grandparents are a powerful voting block, and their fears have been capitalized upon by a variety of conservative religious and political voices who see pornography as a valuable wedge issue, an emotional issue that cuts across pro-live/pro-choice fault lines.

United States Obscenity Standards Since the Civil War
  • Hicklin Standard: obscenity is defined as the tendency to corrupt -- that is arouse sexually -- those whose minds are vulnerable, including women, children, and the weak of mind. (Mid-19th century to 1932)
  • Ulysses Standard: Obscenity is defined as work that would tend to arouse the average person. (1932 to 1957)
  • Roth Standard: If, to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest, it is defined as obscene. (1957 to 1964)
  • Memoirs Standard: For a work to be judged obscene, three elements must coalesce: it must be established that a) the dominant theme of the material taken as a whole appeals to the prurient interest in sex ; b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and c) the material is utterly without redeeming social value. Each of the three criteria is to be applied independently. So, for example, the social value of a book cannot be cancelled out because of prurient appeal or patent offensiveness. (1964 to 1973)
  • Miller Standard: It is the current test for obscenity. It deleted the "utterly without redeeming social value" criterion from the Memoirs standard and substituted the notion of requiring works to have serious literary, artistic, political or scientific value to justify First Amendment protections. The Miller standard allows jureis to measure prurient appeal and patent offensiveness by the standard that prevails in the local or regional community. (1973 to present.)

In recent years the tool of choice for dismantling the three-pronged approach is to move forward a "decency standard" for determining what work should be banned as a way of protecting children. As I’ve previously noted anti-free speech forces got as far as the Supreme Court with the Communications decency act, which was thrown out in 1997. It was essentially the old Hicklin Act dressed up in another format but with exactly the same aim, preventing "dangerous" or "harmful" materials from reaching children. This time around the aim of the act was to limit communication on the world wide web to what the most conservative communities in the country deem to be ok.

The Communications Decency Act was a part of the Telecommunications Reform Act of 1996. It was passed by the Congress and cheerily signed by President Bill Clinton in the name of protecting children from the evils of pornography. The CDA’s framers realized that by attacking obscenity head on, they were fighting a losing battle. So they substituted the concept of decency, which like former Chief Justice Berger’s concept of community standards, has a nice warm and fuzzy ring.

One bombshell in the CDA was that it did not stop with images. It included "indecent" written text by itself -- something that has not been an issue in books since Naked Lunch. But that was not the end of the 19th-century echoes in the CDA. According to The New York Times: "In a move that appeared to surprise many House and Senate members who voted for the legislation, Representative Henry J. Hyde of Illinois, a Republican and longtime abortion opponent, successfully added an amendment that would extend into the electronic age a 123-year-old legal prohibition, the Comstock Act of 1873, against disseminating abortion information."

Sounding exactly like the Lord Chief Justice of England in 1857, Hyde "denied that his intent was to halt discussion of abortion on the Internet or on-line services." It was merely to prevent the passing along of information on how to do it and where.

President Clinton got to walk both sides of the street on this issue. He could be enthusiastic because he didn't think the CDA would make it past the courts. And in fact, that is what happened. Yet while, the Supreme Court’s decision to short-circuit the restrictions of the CDA was good news, it certainly was not be the end of the story.

Supreme Court Justice Antonin Scalia

Congress was back in 1998 with "son of CDA," the Child Online Protection Act, which required commercial Internet sites -- such as this one -- to impose electronic proof-of-age systems before allowing Internet users to view material deemed "harmful to children." Like the CDA, the Child Online Protection Act imposed severe penalties for first-time offences: "Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than six months, or both." According to the act, "each day of violation shall constitute a separate violation."

The act was immediately challenged by a coalition of organizations and individuals, and like the CDA it was found unconstitutional, in this case by the Third Circuit Court of Appeals, for violating First Amendment free speech guarantees.

But the United States Justice Department was not content to let the issue rest. In February 2001 it asked the Supreme Court to review the decision. And at the start of October the high court agreed to review the case, now known as Ashcroft v. ACLU, during its 2001-2002 term. On its face the COPA, like the CDA, would appear unconstitutinally restrictive. However, given the composition of today’s high court, how it will all come out is anybody’s guess.

Supreme Court Justice
Clarence Thomas

What is clear is that if the court does decides that the circuit court was "wrong," and to allow the COPA to be put it in force, the Internet as it is now known will undergo a major transformation. It is likely that a number of valuable independent sites -- such as this one -- will be financially unable to comply, and thus will disappear.

Hard to believe? Yes. But the simple fact is that as long as sexuality is a hot-button issue; as long as people are afraid of it; as long as people are abused sexually; and as long as people exploit sex for commercial and political ends, any freedom in this area is not guaranteed. Like it or not, sex speech is different from all other kinds of speech.

Nadine Srossen, president of the ACLU says most succinctly: "Sexually oriented expression long has been relegated to the bottom of the (Supreme) Court’s First Amendment pecking order."

You have been warned.

Copyright 1996
All rights reserved

For information on reprinting this series for classroom use, please contact us at, or phone 800-495-1988

Part 1: Introduction
Part 2:From Benjamin Hicklin to Margaret Sanger

Part 3: The Little Review and James Joyce’s Ulysses
Part 4: Samuel Roth to Henry Miller
Part 5: The "Brennan Doctrine"
Part 6: Warren Berger and the Miller Standard