Freedom of speech is so central to America’s values and self‐image that it’s codified in the very first amendment to The Constitution. While being far from uniquely protected in the USA, the right to free self expression is one of the aspects of American law for which we should be grateful. Especially when compared to other highly populated countries like India and China, America stands out as exceptionally liberated in this area. Unfortunately, we’re far from the Founding Fathers’ promise of legally unabridged freedom of speech, a fact which is tightly entwined with the history of pornography’s persecution.

“Obscenity” has been a consistent battleground for the issue of free speech since at least the early 1900s, as the Bill Of Rights has consistently collided with conservative sexual mores and fears of cultural degradation. Now, as the Supreme Court hears yet another monumental case on the subject (Free Speech Coalition v Paxton), it’s the perfect moment to get reacquainted with the history of “obscenity” and free speech in the highest of our courts. Don’t worry, it’s not all legal jargon and political doom. There’s some porn viewing parties and weird kinky book titles, too.

We Used To Be Freakier

An ancient sculpture of the Greek god Pan getting it on with a goat (image provided by the British Museum)

It’s easy to assume that the western world’s history is a fairly straightforward march upward from antiquated prudishness to liberated sexual hedonism. As the primary source for this article Sex And The Constitution (2017) by Geoffrey R. Stone tells it, though, that’s far from the case.

Throughout Greek and Roman history (not to mention Medieval Europe) explicit depictions of sex and sexuality were so normative they really weren’t noteworthy. In fact, as Eleanor Janega’s The Once And Future Sex (2023) outlines quite entertainingly, a vast amount of medieval literature was focused on sexual promiscuity and especially cuckolding. Bawdy tales and poetry were staples of everyday life.

A medieval illustration of a nude woman tugging on the night shirt of a man, attempting to convince him to get in bed. — Seduction of Lancelot Le livre de Lancelot du Lac, made ca. 1401-1425 (Bibliothèque nationale de France)

Even as a slightly more modern set of Christian sexual beliefs became prominent starting in the 16th century, Stone describes how “obscenity” was still not yet a legal category. Sexual explicitness might have been sinful, but it was generally not yet illegal.

Even as the United States was founded and the First Amendment penned, there really wasn’t much thought put into even the possibility of federally regulated sexual material, a fact which eventually vexed SCOTUS justices considerably.

SCOTUS Doesn’t Want To Talk About Porn

For much of the country’s history, the Supreme Court intentionally avoided addressing the issue of obscenity. While many (actually, every) new state created laws against sexually explicit material, SCOTUS doggedly avoided the issue. It was clear to the justices that any case addressing the incompatibility between the First Amendment and a myriad of state obscenity bans would result in one of two situations they hoped to avoid: either the court would have to define obscenity and find legal grounds to uphold its illegality or it would be forced to codify its legality as a protected form of speech, a controversial choice which would fly in the face of tradition thus far. Needless to say, they were not jumping at this opportunity during the Victorian Era or even into the 20th Century.

Roth v United States Brings Porn Into The Spotlight

A balding man in round glasses and a little polk a dot bowtie crosses his arms defiantly in an old black and white photo. He's sporting a thin mustache — Samuel Roth, the porn peddling petitioner in Roth v United States (Photo via Columbia University Rare Book and Manuscript Library).jpg

Eventually, though, the topic of obscenity became unavoidable for the Supreme Court thanks to an adorably quaint looking bookseller by the name of Samual Roth. Roth had been selling sexually explicit materials for decades by the time Roth v United States reached SCOTUS in 1957. His Greenwich Village bookshop did not focus on pornography, but he certainly didn’t shy away from the material, either, despite facing constant legal trouble from the New York Society for the Suppression of Vice and local government.

Not even serving months in a Welfare Island workhouse could deter Roth from publishing “nudie pictures” and books like Wild Passions and Wanton by Night. He refused to believe that the infamous Comstock Act could be constitutional.

How could a country with free speech approve of prison time just for some horny books? So, he fought his conviction all the way up to SCOTUS.

The outcome of Roth v United States is maddening for anyone invested in freedom of speech. After deliberation, the court stated that obscenity was not protected speech. Why? Because it was “utterly without redeeming social importance.” Woof. There was no good explanation for why “social importance” is necessary for speech to be legal. There was no argument given for why sexual expression was so useless, either. That was a given.

Essentially: porn’s yucky. Ew. No further discussion necessary.

Roth Decision Sets Blurry Standard For “Obscenity”

Unfortunately, the outcome of Roth v United States didn’t make anyone happy, even those most fervently against explicitly sexual media. While the court upheld obscenity as unprotected, its definition was more precise than many moralists would have liked. It wasn’t enough for a work to include graphic depictions of sex; its “dominant theme” had to “appeal to prurient interests” (old 50s justice speech for “try to make you horny”) as determined by “the average person, applying contemporary community standards.” Legal scholars decried the ruling as unconstitutional while those disturbed by the growing popularity of sexual media were angered by the room it made for legal eroticism in art. As Historian Whitney Strub described it, the ruling simultaneously restricted freedom of speech while opening the floodgates to a “tide of filth.”

What’s Obscenity? “I Know It When I See It”

A confident man with a cleft chin and salt and pepper hair poses in his official robes — Justice Potter Stewart, who infamously gave up on defining obscenity saying “I know it when I see it” (official portrait taken in 1976)

And, oh, were the Supreme Court justices flooded with “filth.” The Sexual Revolution kicked off in the years after Roth, bringing with it rapidly changing sexual standards and a myriad of explicit art. As Kelsy Burke calculates in The Pornography Wars, the decade‐ish between 1957 and 1972 saw no less than thirty one obscenity cases hit SCOTUS.

The precedent set by the Roth case was so blurry that, as Stone describes it, each Supreme Court justice was in essence operating from an entirely separate standard, with each obscenity case bringing a fresh round of disagreements and confusion.

It was this tangle of conflicting porno opinions that led to Justice Potter Stewart’s infamous 1964 quote. He announced that he couldn’t define obscenity, gave up trying, and left it at “I know it when I see it.” Well, it’s comforting to know that the line between legal artistic expression and jail time in the US is essentially vibes.

In general, the Supreme Court of the sixties mostly overturned obscenity convictions that landed on their doorstep, with a solid two thirds of cases (according to Burke) utilizing a more liberal understanding of the non‐obscene.

Memoirs v Massachusetts: A Modicum Is Enough

A book cover whose illustration is a somewhat erotic oil painting. A blonde woman's white dress rides up to her hip as she embraces a man in bed. Behind them, the soft curvaceous midriff is visible — *Fanny Hill*’s 2019 Edition (currently available on Amazon). This erotic novel has been banned repeatedly since its initial publishing in the 1700s.

The 1966 case Memoirs v Massachusetts presented an updated, more lenient set of guidelines for what counted as obscene. The case dealt with Massachusetts banning the 1748 erotic novel Memoirs of a Woman of Pleasure (better known as Fanny Hill). Although its name is sort of cutesy and quaint, the book’s contents are kinkier than you might expect. There’s BDSM, fetishism, orgies and *gasp* lesbianism. Still, SCOTUS affirmed its right to exist.

The 1966 decision even expanded on the obscenity definition set by Roth by clarifying that even a “modicum of social value” would save a work from the stamp of obscenity. This allowed Fanny Hill to live free, yet still, this was a controversial conclusion.

Every justice gave starkly different justifications for their opinions, with one Justice Harlan warning that the vagueness of their current guidelines could result in every single case of obscenity conviction being passed up to the Supreme Court. Somewhat proving his point, the very same day as Memoirs there were two other obscenity related rulings given by SCOTUS, although neither were of particular note from a contemporary perspective.

SCOTUS Drowns In Porn Persecuting Cases

By the next year the Supreme Court was so terribly overrun with obscenity cases that they decided to streamline the process. As Stone paints it, the Justices began issuing unsigned rulings on cases, disposing of thirty‐one obscenity cases this way between 1967 and 1973. Instead of agreeing on a definition of obscenity, the justices would all use their own personal arguments for or against and simply tally up the results at the end. Not only was the process arduous and repetitive for the Justices, the lack of guidelines meant that lower courts, police and other officials also had no real sense of who should be arrested or convicted, making almost every obscenity case end up shuffled up to the highest court.

With so many cases to attend to and so little stamina for the subject, SCOTUS started a yearly porn party tradition, huddling together in a conference room to watch dozens of supposedly obscene films and get it all over with at once. As Stone describes it, it was an occasion full of mirth despite the awkwardness. All (but two abstaining) Justices and their clerks would spend the day laughing and describing the lurid details to the visually impaired Justice Harlan. Did it make for a fun story? Yes. An effective way of handling obscenity law? Not so much.

Stanley v Georgia Implies Sets Course For Obscenity Legalization

During this time, a trend towards more lenience was quite dependable. The Sexual Revolution had set the culture (and Supreme Court) on route to regulate the category of “obscenity” to obscurity. Stanley v Georgia, argued in the months directly prior to 1969’s ‘Summer of Love ', seemed especially to point to a more free future.

The titular Robert Eli Stanley’s home had been searched for unrelated reasons, uncovering several porno films in his possession which resulted in his arrest. Believing Georgia’s criminalization of personal “obscenity” possession to be unconstitutional, Stanley brought his conviction to SCOTUS. In a heartening unanimous decision, the court ruled that laws forbidding private possession of obscene material were unconstitutional. Justice Marshall insisted that

“the State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.”

Not only was Stanley a heartening reassurance to private citizens, it seemed to set a precedent that, carried to its logical conclusion, would practically speaking legalize obscenity. As Stone puts it, “if there is a constitutional right to read or view obscene material in one’s home, then there must logically be a right to buy it [...] sell it [...] distribute it [... and] produce it.”

Nixon Court Heads Anti‐Obscenity Backlash

Justice Warren Burger with President Nixon (photo from nixonfoundation.org)

Unfortunately, the steady trek towards freedom of erotic expression would soon be diverted. With the rise of The Sexual Revolution came, inevitably, its backlash. Justice Warren Burger, a Nixon nominee, took charge as Chief Justice in 1973. As Stone illustrates, Burger was motivated by a stomach turning disgust for porn which he called “filth.” With Burger taking the lead, the court took on two cases in 1973 that would severely impact erotic freedom of speech and expression in the US for decades to come: Miller v California and Paris Adult Theater v Slaton.

Miller v California Sets Current Obscenity Standard

Miller v California set the current standard for differentiating “obscenity” from “pornography” in US law. As Burke tells it, the petitioner Marvin Miller’s company sent out sexually explicit advertisements to its mailing list. Apparently accidentally, one was delivered to a restaurant where the owner promptly called the police. Miller was sentenced to two years of prison time plus a $22,500 fine for violating California’s obscenity laws, a decision which was argued up to the Supreme Court.

By 1973, SCOTUS was chalk full of justices nominated by Nixon, a man who’d run for president with the promise of wiping out obscenity. With the advent of Miller reaching their domain, it was finally time to make Nixon proud. The ruling not only upheld California’s right to convict Miller but also amended the previously established Roth standard (clarified in Memoirs) in a visually subtle yet crucial way. No longer did sexual art need to be “utterly lacking in social value” to be illegal. Now, it was illegal unless it showed “serious literary, artistic, political or scientific value.” In essence, erotic expression was decided to be almost guilty until proven innocent: a standard, more conservative even than in 1957, which is still the law of the land to this day.

Paris Adult Theater v Slaton Persecutes Harmless Media

A cartoon woman cries and begs "Won't somebody please think of the children" — A gif from gif.com showing a clip of The Simpsons Season 7 Episode 23

Miller’s sister case Paris Adult Theater v Staton had even more chilling implications.

Two Atlanta theaters had held screenings of films which included fairly vanilla simulated sex scenes. Not only had the theaters required identification proving each patron was at least twenty one years of age, they’d also advertised the films as “mature” and displayed a large sign reading “if viewing nude bodies offends you, Please Do Not Enter.”

Despite many precautions to protect nonconsenting persons from the erotic films, the court ruled it was within Georgia’s right to prosecute the theaters. Thus, SCOTUS made it clear that obscenity laws did not exist solely to protect children and adults who did not consent.

Instead, even adults jumping at the chance to see boobies and fake sex on screen could be legally barred from doing so. Even in 1973 this decision was shocking and disturbing to the dissenting justices according to Stone. One of whom, Justice Brennan, had played a pivotal part in the earlier Roth ruling, something he regretted once seeing how that precedent evolved. Legal scholars of the time took concerned note of the First Amendment’s erosion.

Suddenly Freedom Just Wins The Day?

An adult performer shows off her skimpy outfit on stage for a large group of fans — Tori Black at Elegant Angel booth at 2010 AVN (Koga/LAist)

This is where many histories of obscenity law in the US take an unexpected turn. Just when it seemed like all hope was lost, VHS came to save the day. As Stone puts it “technology overwhelmed the capacity of the law to constrain our freedom.”

VHS, DVDs, and later the internet simply provided too much opportunity for sexually explicit material to be produced and distributed.

Local governments gave up trying to regulate it, American masturbators prevailed, and we’ll all be swimming in post‐obscenity law decadence forever now, for better or worse. It’s a comforting idea for those of us who value erotic media and freedom of speech, but it’s a tenuous prediction at best.

Yes, our world today hosts a broader range of sexual media than in the 70s, accessible to us at a moment’s notice throughout the day. Remembering the hand wringing and moralizing that softcore simulated sex provoked half a century ago is so quaint it’s almost funny.

Yet this pendulum has been gearing up to swing backwards again for decades now.

Not As Safe As We Though

Trump autographs woman’s chest. Dec. 2, 2015 Photo by Cliff Owen

Since the at least the 1980s the “Christian Right” has been growing in political strength.

As Burke describes, while less American believe porn should be illegal today than in the 70s (32% versus 40%), the number has actually grown among conservative Protestants. Movements like the antiporn feminism of the 80s and current trends like NoFap have taken their toll.

Anti‐porn sentiment has not only been stoked by Trump’s backers but used as a weapon with which to bludgeon trans and queer Americans, with Project 2025 being the most notable example.

Plus the somewhat unexpected strains of sexual conservatism many have noted in young left‐wingers feel ominous that we’ll soon be seeing a repeat of previous moments where liberating social movements seemed to skirt right around sex workers or actively turn against them (think aspects of Second Wave feminism).

Our Uncertain Future

A black and white photo of activists with megaphones and t shirts reading "Vote NO on prop 60" — Free Speech Coalition staff fighting Prop 60 in 2016

As we wait for the verdict in Free Speech Coalition v Paxton, the pornucopia of the 70s to 2010s feels increasingly distant. The last decade has already harmed Adult considerably through legal changes like SESTA/FOSTA.

No local laws or SCOTUS decisions can turn back the clock, but sex workers and all of us who value freedom of speech and erotic expression have a lot to lose. While decades of cultural precedent seemed to indicate, as Stone put it, an “end to obscenity,” the truth is that our latest concrete legal guidelines in this area are more conservative than they were even in the late 50s.

Sexual expression can be banned even if only children and consenting adults can access it. The workers and artists who create it can be imprisoned if they fail to demonstrate its “serious literary, artistic, political, or scientific value.”

And, as stated in Project 2025, the imprisonment of porn producers is very much on some people’s bucket lists. We’re likely only at the beginning of a long, uphill battle to preserve our freedom of speech and erotic expression. I’m not letting my porn go without a fight, though, and The Free Speech Coalition sure as hell isn’t either.