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Prior Restraints: Obscenity

Obscenity falls outside the protection of the First Amendment. Although absolute bans on publication generally have been declared unconstitutional, the Supreme Court has permitted government regulation of the sale and distribution of obscene materials. The Court has consistently required that those regulations be narrowly defined to cover materials judged obscene by contemporary community standards.

In November 1997, the U.S. Court of Appeals in New York City (2nd Cir.) held that the Department of Defense could enforce a 1996 law barring sexually explicit magazines and videotapes from being sold or rented on military bases because it was a reasonable attempt to protect "the military's image and core values."²⁵

In 2002, the Supreme Court decided two cases regarding federal statutes that seek to protect minors from pornography. In the first case, the Court found the Child Pornography Prevention Act of 1996, which criminalized computer-generated or virtual depictions of children that appear to be engaged in sexually explicit conduct, unconstitutional because it prohibits a substantial amount of protected expression.²⁶ In the second case, the Court found the Child Online Protection Act did not violate the First Amendment by using "community standards" to identify "material that is harmful to minors."²⁷ The statute prohibits an individual from knowingly making communications on the Web available to minors if the communication includes materials harmful to minors. The Court emphasized that its decision did not address whether the statute was unconstitutionally overbroad or vague for other reasons or whether the district court properly found that the statute will likely not survive strict scrutiny under the First Amendment. In addition, the Court refused to vacate the preliminary injunction issued by the district court that barred enforcement of the act by the government.

Notes

25. General Media Communications Inc. v. Cohen, 131 F.3d 273 (2nd Cir. 1997), cert. denied, 118 S.Ct. 2694 (1998).

26. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

27. Ashcroft v. ACLU, 535 U.S. 564 (2002).

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