Obscenity and Free Speech

The first amendment to the US Constitution stipulates that "Congress shall make no law ... abridging the freedom of speech," a seemingly straightforward guarantee of citizens' right to say what they want without limitation.

Even this plainly worded civil liberty has been subject to interpretation by the courts, however. In the case of Schenck v. United States, 249 US 47 (1919), for example, the Supreme Court ruled unanimously that the presence of "clear and present danger" (such as World War I, which was going on at the time) justifies limitations on speech. As Justice Oliver Wendell Holmes, Jr. famously put it in the opinion of the Court, "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

When it comes to "non-political speech," the Court has been even more inclined to uphold limitations on the freedom of expression. "Obscenity" is among the more prominent "unprotected speech" categories, in part because it's notoriously difficult to define in practice, as Justic Potter Stewart's concurring opinion in Jacobellis v. Ohio, 378 US 184 (1964), suggests:

...under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

In a dissenting opinion in another obscenity case, Mishkin v. New York, 383 US 502 (1966), Justice Hugo Black objected to

saddling this Court with the irksome and inevitably unpopular and unwholesome task of finally deciding by a case-by-case, sight-by-sight personal judgment of the members of this Court what pornography (whatever that means) is too hard core for people to see or read.

The Supreme Court finally established three guidelines for determining what constitutes obscenity in the case of Miller v. California, 413 US 15 (1973). One of the guidelines is the "contemporary community standards" rule: Material is considered to be obscene if "the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest."

As this recent New York Times article points out, the rise of internet technology might be adding a new twist to the "contemporary community standards" guideline. In an obscenity case going through the Florida state court system, the defense is using Google search data to establish what the relevant community standards are. If Pensacola, FL residents enter keywords like "orgy" more frequently than "apple pie," the argument goes, they're presumably unlikely to find the defendant's pornographic website objectionable. Whether it convinces the judge (who hasn't yet ruled on the admissibility of the Google search data as evidence) or jury remains to be seen ...