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The Supreme Court has recognized “obscenity” as a category of hard-core pornography largely unprotected by the First Amendment. Beginning with Roth v. United States in 1957, the Supreme Court has consistently held that the sale and distribution of obscene material can be punished by criminal law. (However, the 1969 case of Stanley v. Georgia held that the private possession of obscene material in the home was protected by the Constitution. )

After Roth, the Supreme Court found it difficult to establish a satisfactory definition of obscenity. Miller v. California (1973) announced the definition that is used today. Miller held that a work is obscene if (1) “taken as a whole, [it] appeals to the prurient interest;” (2) “[it] depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;” and (3) “taken as a whole, [it] lacks serious literary, artistic, political, or scientific value. (See also Pope v. Illinois, 1987. )

The Supreme Court held that child pornography is unprotected by the First Amendment in New York v. Ferber (1982). Visual depictions of sexual conduct by children can be banned, regardless of whether the Miller test is satisfied, because the production of such material harms the young performers. Even private possession of child pornography may be punished. Simulated child pornography that does not use actual children retains First Amendment protection.

Sexually explicit speech which is neither obscene nor child pornography is protected by the First Amendment. However, courts have recognized a legitimate government interest in limiting children’s exposure to such material. Ginsberg v. New York (1968) upheld an ordinance restricting minors’ access to non-obscene pornography; FCC v. Pacifica Foundation (1978) upheld a Federal Communications Commission ruling that the mid-afternoon radio broadcast of George Carlin’s “Filthy Words” monologue could have been sanctioned.

The government may not impose excessive restrictions on adults’ free speech rights in order to protect children from non-obscene speech. The Court has refused, for example, to premit broad government censorship of cable television or the internet. These rulings relied in part on the availability of technical tools allowing parents to control their children's exposure to inappropriate speech.

Communities frequently impose restrictive zoning on “adult” businesses to control the crime and prostitution associated with them. The Supreme Court has sustained the exercise of such zoning authority, even when the affected businesses are engaged in constitutionally protected non-obscene speech. In Renton v. Playtime Theaters, Inc. (1986), the Court distinguished laws targeting speech because of its content from zoning rules meant to control “secondary effects” associated with sexually explicit speech.