Free Speech Issue: Is there a difference between indecent, pornographic and obscene speech or are they all treated the same?
There is great confusion in the American public at large between the terms, indecent, pornographic and obscene. Often times the terms are used as synonyms for the other; however, each of these terms represent different categories of speech with differing legal consequences. Generally speaking, obscenity is always illegal, pornography enjoys limited protection, and indecent speech is rarely prosecuted.
Other than time, place and manner restrictions, there are few laws against indecent speech. Speech which is profain and vulgar is not a protected category of speech--but it usually won't land you in jail or cause you to be fined. Of course, were you to go to your local Walmart dressed only in a tee shirt and thong you would probably be arrested for public indecency while probably little would be said of your attire as you walked along the ocean in South Beach, Florida . There are a other important exceptions.
Over the air radio and television broadcasters are held to an indecency standard by the Federal Communications Commission. George Carlin's Seven Dirty Words (FCC v. Pacirfica) enumerated seven specific words which have led to "somewhat" consistent fines by the FCC. Though you may see some rather racy and raunchy television from time to time, indecency standards have keep American broadcasters from seeing frontal nudity. The Obama administration has asked for stricter enforcements of the Indecency Standard.
On the other hand, cable television and radio stations and satellite radio stations have not been held to indecency standards since they are not broadcast using the public airwaves. From time to time there are calls from legislators and community activists to impose a more strict standard on these broadcasters.
Pornography is a more intense form of indecent speech. And though many people may have moral objections to it, the courts do not treat pornography in the same way as obscenity. Among adults, pornography is usually a protected form of speech--though local laws may exist to impose time, place and manner restrictions.
It is not always easy to define that which is pornographic. Nudity, by itself, is not the standard by which something is judged as pornographic. For instance, The David, by Michelangelo is considered as an art masterpiece by most people as are many other famous paintings of nudes. In the same way, material that is intended for instruction and training (not just a pretext) that involves nudity is usually not considered either indecent, pornographic, nor obscene. For the purposes of simplicity, we define pornography as that which is designed to be sexually salaciuos and, by its nature, intended to be sexually stimulating by its viewers.
The courts have held that as long as there are reasonable and adequate safeguards to protect young children, adults have a right to view pornographic materials. The courts recognize that material that is appropriate for adult consumption may be very inappropriate for young children.
Though adults are permitted to view non-obscene pornographic images, they may not view or produce child pornography--nor may they use pornographic images to lure underaged children to engage in sexual behaviors. Each of the states have harsh laws to punish those who engage in such actions--including fines and imprisonment.
Through a series of Supreme Court Cases, a standard has emerged to legally define that which is obscene. With a few tweaks here and there, the law which defines obscenity was determined by Miller v. California. Here is the three part test.
(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.
A national standard is used to test part c of this test.
Free Speech Exceptions
- Indecent speech is regulated by time, place and manner restrictions.
- Broadcasters must use an indecency standard for its programming.
- Except for Child Pornography, adults may produce and view pornographic materials as long as they make reasonable efforts to keep the materials away from children.
- Materials judged to be obscene are always illegal and can subject one to fines and imprisonment.
Even though we have laws which clearly define obscenity, it is next to possible to adequately prosecute those who violate these laws--especially over the internet. Many materials are available that are produced outside of the United States under standards that are more permissable than ours.
One of the possible solutions for controlling social ills associated with materials of this ilk is to mandate that all pornographic and obscene domains use a special sex domain name (i.e. www.dirtysite.sex) with adequate protections for minors. Violators sites would be blocked or confiscated.
For More Information
- An Introduction to Indecency by Garvey, Schubert, Barer Law Firm
- FCC v. Pacifica Foundation, 438 US 726 - Supreme Court 1978
- High court asked to reinstate FCC indecency policy
- Miller v. California, 413 US 15 - Supreme Court 1973
- Obscenity and Indecency: Constitutional Principles and Federal Statutes (CRS Report for Congress)
- Pornography Feminist for Free Expression Free Speech Pamphlet Series
- Pornography and Censorship, Stanford Encyclopedia of Philosophy
- Return of the 'Seven Dirty Words' Indecency Standard? By Adam Thierer of the Cato Institute
- The Difference Between Obscenity and Indecency