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Lesson 46 - Free Speech 7:

Speech and Sex:
Obscenity and Child Pornography

One recurring problem -- some say recurring nightmare -- for the Supreme Court has been dealing with sexually explicit expression. The Court has generally (rightly or wrongly) reached the following conclusions:

A.*Obscenity*, defined as speech that
-describes or depicts (in words or pictures) sexual conduct in a manner that is patently offensive under contemporary community standards,
-appeals to the prurient interest, *and*
-taken as a whole, lacks serious literary, scientific, artistic, or political value, is constitutionally UNPROTECTED. You can go to jail for distributing it (though not for possessing it). This category is fairly narrow, and excludes virtually all mere nudity, and most things that have any reasonable pretention to serious art.
B.*Child pornography*, defined as speech that
-visually depicts
-sexual conduct -- which might include sex, masturbation, and "lewd exhibition of genitals" --
-by actual children under the age of 18, is constitutionally UNPROTECTED. You can go to jail for distributing it *or* for possessing it.
The rationale behind this exception is that child pornography necessarily involves the use of children in sexual contexts; and that to suppress such use, the law can ban distribution and possession of child pornography as well as its production. The category is therefore limited to *actual* depictions of children; it almost certainly excludes, say, paintings (or computer-generated images) of fictional children, or verbal descriptions of sexual conduct involving children. In this sense it's narrower than obscenity. But at the same time it's also broader than obscenity: Artistic value is generally no defense, and the images don't have to be particularly offensive.

More on this in the next message.

authors:
Larry LessigDavid PostEugene Volokh



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