FREE SPEECH
Obscenity (Including as to Minors) and "the Work Taken as a Whole"

An isolated sexually themed passage, even a graphic one, doesn't make a work obscene.


EUGENE VOLOKH | 5.27.2022 

REASON MAGAZINE

The Court of Mist and Fury / Gender Queer controversy is a good opportunity to note an important legal principle: Under modern American law, a work can only be "obscene" and therefore constitutionally unprotected—or "obscene as to minors," and therefore constitutionally unprotected when distributed to minors—if it's basically pornographic taken as a whole.

"A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication." The rule once seemed to be that, "to be smut, it must be utterly without redeeming social importance," but that is no longer so.

But, conversely, a few sexual scenes in a work likewise don't make a publication obscene. The question is whether its dominant theme appeals to the "prurient interest," which is to say a "shameful or morbid" interest in sex. (The government must also show that the work is patently offensive under contemporary community standards, and that, taken as a whole, it lacks serious value.) Even Justice Scalia, who was open to pretty substantial restrictions on pornographic material, acknowledged this:

[In our obscenity precedents], we rejected the approach previously adopted by some courts, which would permit the banning of an entire literary work on the basis of one or several passages that in isolation could be considered obscene. Instead, we said, "the dominant theme of the material taken as a whole" must appeal to prurient interest.

(He in turn was quoting Roth v. United States (1957), which was modified in some measure by Miller v. California (1973); but, as Justice Scalia noted, Miller only added extra elements the government must show beyond this "dominant theme" constitutional requirement.) And the same applies to obscene-as-to-minors material.

Now this isn't so for all First Amendment exceptions. Someone can be prosecuted for possessing child pornography even if that's an isolated picture within a broader work. Likewise, someone can be sued (or prosecuted) for libel based on a libelous statement in a mostly nonlibelous work.

But when it comes to the obscenity exception, the law is settled: Isolated pornographic passages don't make a work punishable.

EUGENE VOLOKH is the Gary T. Schwartz Distinguished Professor of Law at UCLA. Naturally, his posts here (like the opinions of the other bloggers) are his own, and not endorsed by any educational institution.

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