Lesson 47 - Free Speech 8:

Speech and Sex (Continued):
Mostly About Child Listeners

In the last message, we talked about obscenity and child pornography, two categories of sexually explicit speech that can be prohibited outright. There are, however, some other categories of sexually themed speech that are protected by the U.S. Constitution, but perhaps not fully protected.

Can the law bar you from posting "harmful to minors" material to a newsgroup, where you know there'll be both adult and child readers? Very hard to tell. Lower courts have upheld laws that bar "public display" of harmful-to-minors material where minors might be present; by analogy, the same might (or might not) apply online. The CDA case (more about it below) might indirectly shed some light on this matter.

C. Speech that is *harmful to minors*, defined as speech that

- describes or depicts (in words or pictures) sexual conduct in a manner that is patently offensive under the contemporary community standards of what is appropriate for minors,

- appeals to the prurient interest of minors, *and*

- taken as a whole, lacks serious literary, scientific, artistic, or political value for minors, may not be knowingly distributed to minors (i.e., children younger than 18). It's clear that the law can punish you for e-mailing a "harmful to minors" image or story to someone you know is a minor.
D. Speech that's *indecent* --

- "that, in context, depicts or describes,"

- "in terms patently offensive as measured by contemporary community standards,"

- "sexual or excretory activities or organs,"

is constitutionally PROTECTED, but might be more subject to regulation than other kinds of speech. At times, the Court has drawn a line between indecent speech and fully protected speech, describing indecent speech as being "low-value." At other times, the Court has treated it pretty much like fully protected speech, but suggested that it can in some ways be restricted in order to shield children from it.
Can the government ban indecent online speech in places where children can see it? This, of course, is what the Communications Decency Act purports to do. The Supreme Court will decide by July whether the CDA is constitutional, so rather than expounding on it ourselves -- and risking our predictions being proved wrong! -- we leave it to the Justices.

E. Speech that is sexually themed but not indecent is fully protected, and can't be restricted even if children can see it. This includes much mere nudity, most discussion of sexual matters, and isolated profanity (as opposed to pervasive profanity, which might be indecent).
Common MYTH: "The First Amendment doesn't protect 'pornography.'" Not true; pornography that is neither obscene nor child pornography is protected, though it can sometimes be restricted in certain ways.

OBSOLETE FORMULATION: Those of you who learned your obscenity law from Tom Lehrer (as I originally did), might remember that "As the judge remarked the day that he acquitted my aunt Hortense, To be smut, it must be utterly without redeeming social importance." (I've always loved the sheer chutpzah of that "Hortense" rhyme.)

That was the rule when Tom Lehrer was writing, but it isn't now. Speech may be punishable obscenity if, taken as a whole, it lacks serious literary, scientific, artistic, or political value. If it has *some* reedeming importance, but not *serious value*, it might still be obscene. Probably not a huge difference in practice -- the serious value standard isn't that hard to meet -- but still a difference.

authors:

Larry Lessig David Post Eugene Volokh

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C.	Speech that is harmful to minors, defined as speech that
-	describes or depicts (in words or pictures) sexual conduct in a manner that is patently offensive under the contemporary community standards of what is appropriate for minors,
-	appeals to the prurient interest of minors, and
-	taken as a whole, lacks serious literary, scientific, artistic, or political value for minors, may not be knowingly distributed to minors (i.e., children younger than 18). It's clear that the law can punish you for e-mailing a "harmful to minors" image or story to someone you know is a minor.
D.	Speech that's indecent --
-	"that, in context, depicts or describes,"
-	"in terms patently offensive as measured by contemporary community standards,"
-	"sexual or excretory activities or organs,"
	is constitutionally PROTECTED, but might be more subject to regulation than other kinds of speech. At times, the Court has drawn a line between indecent speech and fully protected speech, describing indecent speech as being "low-value." At other times, the Court has treated it pretty much like fully protected speech, but suggested that it can in some ways be restricted in order to shield children from it.

Lesson 47 - Free Speech 8:

Speech and Sex (Continued): Mostly About Child Listeners

Speech and Sex (Continued):
Mostly About Child Listeners