The Origins of Obscenity Regulation

The Legal Justification for Regulating Obscene Speech

The tension between protecting free expression and restricting harmful content lies at the heart of First Amendment jurisprudence. Police Dept. of Chicago v. Mosley (1972) established the crucial rule that government generally cannot restrict speech based on its message. Still, that case also serves as a reminder that this is not absolute. In his concurrence, Chief Justice Burger sought to clarify that the ban on content discrimination did not abandon the doctrine of specific unprotected categories of speech, such as obscenity, incitement, fighting words, and libel.

This raises a fundamental question, particularly concerning obscenity: Why is obscenity, as a form of content, treated differently from other content-based speech, and how does the legal system justify this content-based regulation? As Chief Justice Burger stated in his concurrence in Mosley, “…the First Amendment does not literally mean that we are guaranteed the right to express any thought…” Burger cites Roth v. United States (1957) as an example. In Roth, the court held that a statute criminalizing the mailing of obscene materials was constitutional, as such expression was not protected speech. Our answer to the above question lies not in the court’s definition of “obscenity,” but instead in its reasoning why protection is not deserved. Writing for the majority in Roth, Justice Brennan quotes Chaplinsky v. New Hampshire (1942): “It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” The Court demonstrated a clear intent to justify denying obscenity protection on moral and social grounds.

Justice Brennan clarifies in Roth that “all ideas having even the slightest redeeming social importance…have the full protection of the guaranties.” And his reference to “social interest in order and morality” unmistakably evokes notions of social value in his justification. In contrast to the majority opinion in Mosley, Justice Marshall clarifies what is worthy of constitutional protection: “But above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Using these phrases, Justice Marshall evokes notions of value to the individual and the content expressed. When paired with Justice Burger’s reminder of the limits of protection, the proper justification of denying protection to obscenity is revealed: To the extent content exceeds the scope of personal value and begins to interfere with the state’s interest in social order and morality, constitutional standing is forfeited.

The core difference between unprotected obscenity and protected content-based speech hinges on the judiciary’s value judgment regarding the content. The legal system justifies its content-based restriction on obscenity by applying a categorical threshold: any expression found to be, as Justice Brennan states in Roth, “utterly without redeeming social importance” is deemed to be unworthy of constitutional protection. This legal mechanism, upheld by Roth, Chaplinsky, and clarified by Chief Justice Burger’s concurrence in Mosley, successfully insulates the government’s power to regulate morality without compromising the First Amendment’s supreme protection of ideas that are central to the American “marketplace of ideas.”