It is important to note that this decision was over pornography, not obscene materials, which have no First Amendment protection. United States common law distinguishes between offensive speech, indecent speech and obscene speech (Akdeniz 1996). Indecent Speech has first amendment protection, but can be limited with a compelling government interest. Obscene speech, however, has no first amendment protection. This was confirmed in the 1957 case of Roth v. United States, which reaffirmed the previous belief that obscenity laws have no implication on the first amendment (Akdeniz 1996). However, any ideas with redeeming social importance or literary merit could not be considered to be obscene.
Obviously, the fact that obscene material is not protected by the First Amendment has been less of an issue than deciding what actually is obscene. Prior to 1957, the Hicklin Test was the most important standard for determining whether material was obscene or not. The test was laid out by British Judge Chief Justice Cockburn in the 1868 case of R v. Hicklin (Cragg and Koggel 1997). By this standard, material was obscene if it tended to deprave and corrupt those who might access the material (Cragg and Koggel 1997; Easton 1998, 607). The definition of obscenity was mostly confused until the Supreme Court laid out new standards in the 1973 case Miller v. California. The test has three parts and all three of these must be satisfied. The parts are laid out by Akdeniz 1996 as follows:
- if the average person using contemporary moral standards finds the material appeals to their prurient interest
- if the material depicts or describes an offensive sexual conduct specifically defined by state law
- if the material generally lacks obvious value of a literary, artistic, political or scientific nature
This test of obscenity has not gone unchallenged, especially since in two parts of the test, the use community standards and state law, vary widely over jurisdictions across the US System operators of internet providers must be especially aware of the more than 50 jurisdictions in the US and their laws.
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