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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

Also, government may take notice of objective conditions attributable to the commercialization of sexually explicit but non– obscene materials. Thus, the Court recognized a municipality’s authority to zone land to prevent deterioration of urban areas, upholding an ordinance providing that “adult theaters” showing motion pictures that depicted “specified sexual activities” or “specified anatomical areas” could not be located within 100 feet of any two other establishments included within the ordinance or within 500 feet of a residential area.62 Similarly, an adult bookstore is subject[p.1162]to closure as a public nuisance if it is being used as a place for prostitution and illegal sexual activities, since the closure “was directed at unlawful conduct having nothing to do with books or other expressive activity.”63 However, a city was held constitutionally powerless to prohibit drive–in motion picture theaters from showing films containing nudity if the screen is visible from a public street or place.64 Also, the FCC was unable to justify a ban on transmission of “indecent” but not obscene telephone messages.65

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.


Footnotes

53 458 U.S. 747 (1982) . Decision of the Court was unanimous, although there were several limiting concurrences. Compare, e.g., 775 (Justice Brennan, arguing for exemption of “material with serious literary, scientific, or educational value”), with 774 (Justice O’Connor, arguing that such material need not be excepted). The Court did not pass on the question, inasmuch as the materials before it were well within the prohibitable category. Id. at 766–74.
54 Id. at 763–64.
55 Id. at 764 (emphasis original). The Court’s statement of the modified Miller standards for child pornography is at id., 764–65.
56 495 U.S. 103 (1990) .
57 Id. at 108.
58 Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–14 (1975) .
59 E.g., Cohen v. California, 403 U.S. 15 (1971) . Special rules apply to broadcast speech, which, because of its intrusion into the home and the difficulties of protecting children, is accorded “the most limited First Amendment protection” of all forms of communication; non– obscene but indecent language may be curtailed, the time of day and other circumstances determining the extent of curtailment. FCC v. Pacifica Found., 438 U.S. 726, 748 (1978) . However, recent efforts by Congress and the FCC to extend the indecency ban to 24 hours a day have been rebuffed by an appeals court. Action for Children’s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991) (invalidating regulations promulgated pursuant to Pub. L. No. 100–459, Sec. 608), cert. denied, 112 S. Ct. 1281, 1282. Earlier, the same court had invalidated an FCC restriction on indecent, non–obscene broadcasts to the hours of midnight to 6 a.m., finding that the FCC had failed to adduce sufficient evidence to support the restraint. Action for Children’s Television v. FCC, 852 F.2d 1332, 1335 (D.C. Cir. 1988). Congress has now imposed a similar 6 a.m.–to–midnight ban on indecent programming, with a 10 p.m.–to–midnight exception for stations that go off the air at midnight. Pub. L. 102–356, Sec. 16 (1992), 47 U.S.C. Sec. 303 note.
60 Justice Scalia, concurring in Sable Communications v. FCC, 492 U.S. 115, 132 (1989) , suggested that there should be a “sliding scale” taking into account the definition of obscenity: “[t]he more narrow the understanding of what is ‘obscene,’ and hence the more pornographic what is embraced within the residual category of ‘indecency,’ the more reasonable it becomes to insist upon greater assurance of insulation from minors.” Barnes v. Glen Theatre, 111 Ct. 2456 (1991), upholding regulation of nude dancing even in the absence of threat to minors, may illustrate a general willingness by the Court to apply soft rather than strict scrutiny to regulation of more sexually explicit expression.
61 See Sable Communications v. FCC, 492 U.S. 115 (1989) (FCC’s “dial–a-porn” rules imposing a total ban on “indecent” speech are unconstitutional, given less restrictive alternatives—e.g., credit cards or user IDs—of preventing access by children). Pacifica Foundation is distinguishable, the Court reasoned, because that case did not involve a “total ban” on broadcast, and also because there is no “captive audience” for the “dial–it” medium, as there is for the broadcast medium. 492U.S. at 127–28 492U.S. at 127–28.

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.

62 Young v. American Mini Theatres, 427 U.S. 50 (1976) . Four of the five majority Justices thought the speech involved deserved less First Amendment protection than other expression, id. at 63–71, while Justice Powell, concurring, thought the ordinance was sustainable as a measure that served valid governmental interests and only incidentally affected expression. Id. at 73. Justices Stewart, Brennan, Marshall, and Blackmun dissented. Id. at 84, 88. Young was followed in City of Renton v. Playtime Theatres, 475 U.S. 41 (1986) , upholding a city ordinance prohibiting location of adult theaters within 1,000 feet of residential areas, churches, or parks, and within one mile of any school. Rejecting the claim that the ordinance regulated content of speech, the Court indicated that such time, place and manner regulations are valid if “designed to serve a substantial governmental interest” and if “allow[ing] for reasonable alternative avenues of communication.” Id. at 39. The city had a substantial interest in regulating the “undesirable secondary effects” of such businesses. And, while the suitability for adult theaters of the remaining 520 acres within the city was disputed, the Court held that the theaters “must fend for themselves in the real estate market,” and are entitled only to “a reasonable opportunity to open and operate.” Id. at 42.
63 Arcara v. Cloud Books, 478 U.S. 697 (1986) .
64 Erznoznik v. City of Jacksonville, 422 U.S. 204 (1975) . Dissenting from Justice Powell’s opinion for the Court were Chief Justice Burger and Justices White and Rehnquist. Id. at 218, 224. Only Justice Blackmun, of the Justices in the majority, remains on the Court in 1992, and it seems questionable whether the current Court would reach the same result.
65 Sable Communications of California v. FCC, 492 U.S. 115 (1989) .
66 111 Ct. 2456 (1991).
67 Id. (Chief Justice Rehnquist, joined by Justices O’Connor and Kennedy).
68 Id. at 2468 (Justice Souter).
69 Id. at 2463 (Justice Scalia). The Justice thus favored application of the same approach recently applied to free exercise of religion in Employment Division v. Smith, 494 U.S. 872 (1990) .
70 Earlier cases had established as much. See California v. LaRue, 409 U.S. 109, 118 (1972) ; Southeastern Promotions v. Conrad, 420 U.S. 546, 557–58 (1975) ; Doran v. Salem Inn, 422 U.S. 922, 932 (1975) ; Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981) ; New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 716, 718 (1981) . Presumably, then, the distinction between barroom erotic dancing, entitled to minimum protection, and social “ballroom” dancing, not expressive and hence not entitled to First Amendment protection (see City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989) ), still hangs by a few threads. Justice Souter, concurring in Barnes, 111 S. Ct. 2468, recognized the validity of the distinction between ballroom and erotic dancing, a validity that had been questioned by a dissent in the lower court. Miller v. Civil City of South Bend, 904 F.2d 1081, 1128–29 (7th Cir. 1990) (Easterbrook, J.).
71 Although Justice Souter relied on what were essentially zoning cases (Young v. American Mini Theatres and Renton v. Playtime Theatres) to justify regulation of expression itself, he nonetheless pointed out that a pornographic movie featuring one of the respondent dancers was playing nearby without interference by the authorities. This suggests that, at least with respect to direct regulation of the degree of permissible nudity, he might draw a distinction between “live” and film performances even while acknowledging the harmful “secondary” effects associated with both.
72 The Court has not ruled directly on such issues. See Southeastern Promotions v. Conrad, 420 U.S. 546 (1975) (invalidating the denial of use of a public auditorium for a production of the musical “Hair,” in the absence of procedural safeguards that must accompany a system of prior restraint). Presumably the Barnes plurality’s public morality rationale would apply equally to the “adult” stage and to the operatic theater, while Justice Souter’s secondary effects rationale would not. But the plurality ducked this issue, reinterpreting the lower court record to deny that Indiana had distinguished between “adult” and theatrical productions. 111 S. Ct. at 2459 n.1 (Chief Justice Rehnquist); id. at 2464 n.2 (Justice Scalia). On the other hand, the fact that the state authorities disclaimed any intent to apply the statute to theatrical productions demonstrated to dissenting Justice White (who was joined by Justices Marshall, Blackmun, and Stevens) that the statute was not a general prohibition on public nudity, but instead was targeted at “the communicative aspect of the erotic dance.” 111 S. Ct. at 2473.
73 The Court had only recently affirmed that music is entitled to First Amendment protection independently of the message conveyed by any lyrics (Ward v. Rock Against Racism, 491 U.S. 781 (1989) ), so it seems implausible that the Court is signalling a narrowing of protection to only ideas and opinions. Rather, the Court seems willing to give government the benefit of the doubt when it comes to legitimate objectives in regulating expressive conduct that is sexually explicit. For an extensive discourse on the expressive aspects of dance and the arts in general, and the striptease in particular, see Judge Posner’s concurring opinion in the lower court’s disposition of Barnes. Miller v. Civil City of South Bend, 904 F.2d 1081, 1089 (7th Cir. 1990).
74 California v. LaRue, 409 U.S. 109 (1972) ; New York State Liquor Auth. v. Bellanca, 452 U.S. 714 (1981) .

Supplement Footnotes

134 521 U.S. 844 (1997) .
135 The other provision the Court struck down would have prohibited indecent communications, by telephone, fax, or e–mail, to minors.
136 521U.S. at 874–75 521U.S. at 874–75. The Court did not address whether, if less restrictive alternatives would not be as effective, the Government would then be permitted to reduce the adult population to only what is fit for children.
137 438 U.S. 726 (1978) .
138 521U.S. at 867 521U.S. at 867.
139 120S. Ct. 1382 (2000).
140 120 S. Ct. at 1392, 1393.
141 120 S. Ct. at 1402.
142 120 S. Ct. at 1405.
143 120 S. Ct. at 1393. The plurality said that, though nude dancing is “expressive conduct,” “we think that it falls only within the outer ambit of the First Amendment’s protection.” Id. at 1391. The opinion also quotes Justice Stevens to the same effect with regard to erotic materials generally. Id. at 1393. In United States v. Playboy Entertainment Group, Inc., 120S. Ct. 1878, 1893 (2000), however, the Court wrote that it “cannot be influenced . . . by the perception that the regulation in question is not a major one because the speech [“signal bleed” of sexually oriented cable programming] is not very important.”
144 120 S. Ct. at 1397.
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