Freedom of Speech and the Porn Industry

by Colin Klein

While there are those opposed to the porn industry for a variety of reasons, it continues to be legal in the United States. After all, the first amendment protects our right to freedom of speech, right? Well, sort of. In reality, not all porn is protected by the first amendment, and some of it may, in fact, be illegal. It is more commonly known that child pornography is illegal, which seems perfectly reasonable. What some may not be aware of is that there is an additional category of porn that has been illegal in the United States since 1973. Material labeled as obscene, as defined by the Miller Test of Obscenity, also known as the Three Prong Obscenity Test, is not protected under the first amendment, and can actually be prohibited and deemed illegal. In order to be declared obscene, material must meet all of the following three criteria:

"(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, [Roth, supra, at 489,] 

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and 

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. [Pp. 24-25.]"(Three Prong Obscenity Test).

In reality, porn is still widely available in the U.S., and not very much of it actually meets all three of these criteria to the extent that legal action is taken. However, it is important to know that these restrictions do exist.

Of course, each country can choose to regulate its porn industry in a manner in which it sees fit. Iceland has been making the headlines recently because of its attempts to draft legislation that would ban internet pornography. These attempts have stirred up controversy within the country and across the world. Proponents of the legislation claim that such a law would protect children from viewing violent and harmful material. But many are arguing that this law would censor the internet and threaten free speech. What I found interesting was that pornography has already technically been banned in Iceland for decades; this new law would simply be put in place to clarify and enforce the existing law. What may not be immediately apparent about the new legislation is that Iceland’s government is not attempting to censor sex; the proposed “ban would define pornography as material with violent or degrading content,” (Associated Press). With that in mind, is Iceland’s proposed legislation far from the United State’s existing legislation? It may not be, although it all depends how further discussion regarding the proposed legislation plays out.

Even still, the U.S. is not immune to ever-changing legislation regarding the porn industry. Last November, Los Angeles County passed the Safer Sex in the Adult Film Industry Act. The law requires that porn actors wear condoms during sex scenes. The purpose of the law is to send a more positive message regarding condom use to viewers, as well as to protect those actors involved in the sex scenes. However, as one could’ve predicted, many find this in violation of the first amendment, and lawyers of the adult entertainment industry in Los Angeles are now challenging this law. They claim that the government has no right to tell them how to have sex, considering that the actors are required to get frequently tested for STDs, and their choice not to use condoms doesn’t directly endanger them or anyone else. Steven Hirsch, head of the adult production company Vivid Entertainment, added that he made his company condom-mandatory for a brief period twelve years ago, and video sales dropped by thirty percent. He argues, “The performers don't want it, the producers don't want it and clearly the fans don't want it," (Barco). As of now, the law stands, but it will only be a matter of time before the courts make a final ruling.

What do you think? Should freedom of speech always prevail, or does the government have a place in regulating what is allowed to be shown in pornographic materials? Additionally, consider how such regulations could be enforced; while it is one thing to enact a law requiring condom use, the government would still need a way of finding violators of the law and prosecuting them. And for production companies that do not wish to comply with the new law, they can simply migrate their operations outside of Los Angeles County, where condom use is not required.

Bibliography:

Associated Press. (2013, February 25). Iceland seeks internet pornography ban. The Guardian. Retrieved March 5, 2013, from http://www.guardian.co.uk/world/2013/feb/25/iceland-seeks-internet-pornography-ban

BARCO, M. D. (2013, January 15). Porn industry turned off by L.A. mandate for condoms on set. NPR : National Public Radio. Retrieved March 5, 2013, from http://www.npr.org/2013/01/15/169423027/porn-industry-turned-off-by-l-a-mandate-for-condoms-on-set

Three Prong Obscenity Test. (1997, July 21). Undergraduate Courses | Computer Science at Virginia Tech. Retrieved March 5, 2013, from http://courses.cs.vt.edu/cs3604/lib/Censorship/3-prong-test.html