Obscenity, Internet Censorship and the First Amendment

The First Amendment ensures freedom of speech and of the press, expressions necessary to a democratic society, and the Internet has the potential to give many people in any society an open forum to voice their concerns and to reach a large audience. Pornography and other graphic materials existed before the Internet, but the technology's far-reaching capabilities have made this material more accessible and intrusive.

One problem faced by both the U.S. Congress and the courts is defining the terms obscene and indecent. Because the First Amendment does not protect obscene material but does protect indecent material, creating a distinction between the two is important.

The Supreme Court constructed tests for obscenity in the cases Roth v. United States (1957) and Memoirs v. Massachusetts (1966). The current standards for obscenity were defined in the Supreme Court case Miller v. California (1973).
Miller (1973) brought the tests from Roth (1957) and Memoirs (1966) together to create a three-part test to be used in evaluating alleged obscene material. Five justices supported the opinion that rewrote obscenity standards.

They stated that before the government can prosecute anyone for the handling of obscene materials, the government first must determine "whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest….(Miller v. California, 1973)."

Measuring "contemporary community standards" presents a problem, especially online. Different communities have different standards for labeling obscenity; therefore, because someone can use the Internet to reach several communities, the recipient's community standards apply. People who distribute material nationally using the Internet could be sued in any state where the material is accessible (Rose, 1995). In requiring the work to be taken as a whole, the court gave some leeway to works that might include only a small amount of material that could be considered obscene (Rose, 1995).