Obscenity is a constitutionally unprotected form of speech. The test for determining whether something is ‘‘obscene’’ was established by the Supreme Court in 1973 in Miller v. California. The Miller obscenity test asks:
- Whether the average person, applying contemporary community standards, would find that material, taken as a whole, appeals to the prurient interest,
- whether the material depicts or describes, in a patently offensive way, sexual conduct specifically defined by law; and,
- whether the material, taken as a whole, lacks serious literary, artistic, political, or scientific value. (This part of the test is governed by national, not community, standards.)
Pornography is not the same as obscenity. Pornography has no legal meaning; it is normally used to refer to sexually explicit material that may or may not qualify as obscene. Similarly, obscenity and indecency are not co-extensive. Decency is a standard used in the regulation of broadcast media to protect minors, and is not part of the Miller test. You can read more about decency in our Harmful to Minors section.
The nude has historically been one of the central subjects of art, but it remains a subject of controversy and censorship in the United States. The beauty of the human body has inspired painters, photographers, sculptors and choreographers for many centuries. For hundreds of years there have been sculptures of nudes in many public spaces from Washington, D.C. to the capitals of Europe. Nevertheless, exhibition spaces frequently decide to censor artwork containing nudity so as to “protect children” from what some might think is “indecent,” or simply to avoid controversy.
The U.S. Supreme Court has stated multiple times that simple nudity (i.e., representations of the nude body in a non-sexualized manner) is constitutionally protected expression. The cases below are a non-exhaustive list.
Ashcroft v. ACLU-- A challenge to the Child Online Protection Act, which regulated online pornography.
Bella Lewitzky Dance Foundation v. Frohnmayer-- A group of nonprofits challenged the National Endowment for the Arts' grant procedure which prohibited the use of NEA funds for obscene materials.
Bellospirito v. Manhasset Public Library-- An artist challenged the Manhasset Public Library's policy against displaying nudes.
Close v. Lederle-- An art instructor challenged the removal of his works by university officials. An art instructor challenged the removal of his works by university officials.
Contemporary Arts Center v. Ney--The Contemporary Arts Center challenged the city's charge that a photography exhibit of Robert Mapplethorpe was obscene.
Erzoznik v. City of Jacksonville-- A city ordinance prohibited showing movies containing nudity at drive-in theaters if the screen could be seen from a public space.
Freedman v. Maryland-- The artist Freedman was convicted for showing a film without getting it cleared by the State Board of Censors. He appealed.
Hopper and Rupp v. City of Pasco-- Pasco's city hall invited artists to display works in their building. Hopper challenged the city's decision to not display his artwork.
Interstate Circuit, Inc. v. City of Dallas--A film distributor challenged Dallas' ban on the film "Viva Maria."
LSO v. Stroh-- LSO challenged a law which imposed sanctions if they held an Erotic Art Exhibition for violating the First Amendment.
Nitke v. Gonzalez-- Nitke, a photographer, challenged the Communications Decency Act (CDA) which prohibited the transmission of obscene materials to minors.
Piarowski v. Illinois Community College-- Piarowski donated stained glass windows to the college's art department, some of which were deemed obscene. He claimed a First Amendment violation when the College demanded the work be moved.
Pope v. Illinois-- Pope sold adult magazines to the police and was prosecuted for obscenity.
Reno v. ACLU-- A challenge to the Communications Decency Act (CDA), which criminalized the transmission of obscene or indecent messages to minors.
Tunick v. Safir-- A photographer claimed that New York City shouldn't be able to interfere with his photo shoot of 75+ naked models on the grounds that it was part of a public showing of a work of art.
United States v. American Library Association-- A challenge to the Children Internet Protection Act(CIPA) which regulated the accessibility of pornography in pubic libraries.
United States v. Stevens-- Stevens was criminally charged over a website and business which sold videos of dog fights.