CRS Annotated Constitution
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Child Pornography.—In New York v. Ferber,53 the Court recognized another category of expression that is outside the coverage of the First Amendment, the pictorial representation of children in films or still photographs in a variety of sexual activities or exposures of the genitals. The basic reason such depictions could be prohibited was the governmental interest in protecting the physical[p.1160]and psychological well–being of children whose participation in the production of these materials would subject them to exploitation and harm. The state may go beyond a mere prohibition on the use of the children, because it is not possible to protect children adequately without prohibiting the exhibition and dissemination of the materials and advertising about them. Thus, “the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case–by–case adjudication is required.”54 But, since expression is involved, government must carefully define what conduct is to be prohibited and may reach only “works that visually depict sexual conduct by children below a specified age.”55
The reach of the state may even extend to private possession of child pornography in the home. In Osborne v. Ohio56 the Court upheld a state law criminalizing the possession or viewing of child pornography as applied to someone who possessed such materials in his home. Distinguishing Stanley v. Georgia, the Court ruled that Ohio’s interest in preventing exploitation of children far exceeded what it characterized as Georgia’s “paternalistic interest” in protecting the minds of adult viewers of pornography.57 Because of the greater importance of the state interest involved, the Court saw less need to require states to demonstrate a strong necessity for regulating private possession as well as commercial distribution and sale.
Non–obscene But Sexually Explicit and Indecent Expression.— There is expression, either spoken or portrayed, which is offensive to some but is not within the constitutional standards of unprotected obscenity. Nudity portrayed in films or stills cannot be presumed obscene58 nor can offensive language ordinarily be punished simply because it offends someone.59 Nonetheless, govern[p.1161]ment may regulate sexually explicit but non–obscene expression in a variety of ways. Legitimate governmental interests may be furthered by appropriately narrow regulation, and the Court’s view of how narrow regulation must be is apparently influenced not only by its view of the strength of the government’s interest in regulation, but also by its view of the importance of the expression itself. In other words, sexually explicit expression does not receive the same degree of protection afforded purely political speech.60
Government has a “compelling” interest in the protection of children from seeing or hearing indecent material, but total bans applicable to adults and children alike are constitutionally suspect.61
Supplement: [P. 1161, add to text following n.61:]
In Reno v. American Civil Liberties Union,134 the Court struck down two provisions of the Communications Decency Act of 1996 (CDA), one of which would have prohibited use of an “interactive computer service” to display indecent material “in a manner available to a person under 18 years of age.” 135 This prohibition would, in effect, have banned indecent material from all Internet sites except those accessible by adults only. Although intended “to deny minors access to potentially harmful speech . . . , [the CDA’s] burden on adult speech,” the Court wrote, “is unacceptable if less restrictive alternatives would be at least as effective . . . . [T]he Government may not ‘reduc[e] the adult population . . . to . . . only what is fit for children.’ ” 136
In Reno, the Court distinguished FCC v. Pacifica Foundation,137 in which it had upheld the FCC’s restrictions on indecent radio and television broadcasts, because (1) “[t]he CDA’s broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet,” (2) the CDA imposes criminal penalties, and the Court has never decided whether indecent broadcasts “would justify a criminal prosecution,” and (3) radio and television, unlike the Internet, have, “as a matter of history . . . ‘received the most limited First Amendment protection,’ . . . in large part because warnings could not adequately protect the listener from unexpected program content. . . . [On the Internet], the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.” 138
Supplement: [P. 1161, start a new paragraph of text with the material that previously followed n.61, and change the opening words of that new paragraph from “Also, government may” to “The government may also”.]
The Court has recently held, however, that “live” productions containing nudity can be regulated to a greater extent than had been allowed for films and publications. Whether this represents a distinction between live performances and other entertainment media, or whether instead it signals a more permissive approach overall to governmental regulation of non–obscene but sexually explicit material, remains to be seen. In Barnes v. Glen Theatre, Inc.,66 the Court upheld application of Indiana’s public indecency statute to require that dancers in public performances of nude, non–obscene erotic dancing wear “pasties” and a “G–string” rather than appear totally nude. There was no opinion of the Court, three Justices viewing the statute as a permissible regulation of “societal order and morality,”67 one viewing it as a permissible means of regulating supposed secondary effects of prostitution and other criminal activity,68 and a fifth Justice seeing no need for special First Amendment protection from a law of general applicability directed at conduct rather than expression.69 All but one of the Justices agreed that nude dancing is entitled to some First Amendment protection,70 but the result of Barnes was a bare minimum[p.1163]of protection. Numerous questions remain unanswered. In addition to the uncertainty over applicability of Barnes to regulation of the content of films or other shows in “adult” theaters,71 there is also the issue of its applicability to nudity in operas or theatrical productions not normally associated with commercial exploitation of sex.72 But broad implications for First Amendment doctrine are probably unwarranted.73 The Indiana statute was not limited in application to barrooms; had it been, then the Twenty–first Amendment would have afforded additional authority to regulate the erotic dancing.74
Supplement: [P. 1163, add to text following n.74:]
In Erie v. Pap’s A.M.,139 the Supreme Court again upheld the application of a statute prohibiting public nudity to an “adult” entertainment establishment. Although there was again only a plurality opinion, parts of that opinion were joined by five justices. These five adopted Justice Souter’s position in Barnes, that the statute satisfied the O’Brien test because it was intended “to combat harmful secondary effects,” such as “prostitution and other criminal activity.” 140 Justice Souter, however, though joining the plurality opinion, also dissented in part. He continued to believe that secondary effects were an adequate justification for banning nude dancing, but did not believe “that the city has made a sufficient evidentiary showing to sustain its regulation,” and therefore would have remanded the case for further proceedings.141 He acknowledged his “mistake” in Barnes in failing to make the same demand for evidence.142
The plurality opinion found that the effect of Erie’s public nudity ban “on the erotic message . . . is de minimis” because Erie allowed dancers to perform wearing only pasties and G–strings.143 It may follow that “requiring dancers to wear pasties and G–strings may not greatly reduce . . . secondary effects, but O’Brien requires only that the regulation further the interest of combating such effects,” not that it further it to a particular extent.144 The plurality opinion did not address the question of whether statutes prohibiting public nudity could be applied to serious theater, but its reliance on secondary effects suggests that they could not.
Supplement: [P. 1161, add to n.61:]
Similar rules apply in regulation of cable TV. In Denver Area Educ. Tel. Consortium v. FCC, 518 U.S. 727, 755 (1996) , the Court, acknowledging that protection of children from sexually explicit programming is a “compelling” governmental interest (but refusing to determine whether strict scrutiny applies), nonetheless struck down a requirement that cable operators segregate and block indecent programming on leased access channels. The segregate–and–block restrictions, which included a requirement that a request for access be in writing, and which allowed for up to 30 days’ delay in blocking or unblocking a channel, were not sufficiently protective of adults’ speech and viewing interests to be considered either narrowly or reasonably tailored to serve the government’s compelling interest in protecting children. In United States v. Playboy Entertainment Group, Inc., 120S. Ct. 1878 (2000), the Supreme Court, explicitly applying strict scrutiny to a content–based speech restriction on cable TV, struck down a federal statute designed to “shield children from hearing or seeing images resulting from signal bleed.” Id. at 1883.
The Court seems to be becoming less absolute in viewing the protection of all minors (regardless of age) from all indecent material (regardless of its educational value and parental approval) to be a compelling governmental interest. In striking down the Communications Decency Act of 1996, the Court would “neither accept nor reject the Government’s submission that the First Amendment does not forbid a blanket prohibition on all ‘indecent’ and ‘patently offensive’ messages communicated to a 17–year–old—no matter how much value the message may have and regardless of parental approval. It is at least clear that the strength of the Government’s interest in protecting minors is not equally strong throughout the coverage of this broad statute.” Reno v. American Civil Liberties Union, 521 U.S. 844, 878 (1997) . In Playboy Entertainment Group, 120 S. Ct. at 1892, the Court wrote: “Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech.” The Court also would “not discount the possibility that a graphic image could have a negative impact upon a young child” (id. at 1893), thereby suggesting again that it may take age into account when applying strict scrutiny.
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