Unless you are someone who either makes money from child pornography or enjoys viewing child pornography, you probably find protecting any aspect of that sleazy business abhorrent. In two recent cases, the Supreme Court tried to balance issues of free speech versus child protection laws. The first, decided on April 16, , Ashcroft v. The second, decided on June 23, , United States v. In order for a library to receive federal assistance it must install software that blocks images that show obscenity or child pornography and prevent minors from accessing this material. Both laws enjoy widespread public support, but raise freedom of speech questions.
Obscenity refers to a narrow category of pornography that violates contemporary community standards and has no serious literary, artistic, political or scientific value. For adults at least, most pornography receives constitutional protection. Miller v. The Supreme Court has resisted efforts of states to expand the rationale for obscenity laws beyond hard-core sexual material when it invalidated a California statute that regulated the sale or rental of violent video games to minors. For adults at least, most pornography — material of a sexual nature that arouses many readers and viewers — receives constitutional protection. However, two types of pornography receive no First Amendment protection: obscenity and child pornography. Obscenity remains one of the most controversial and confounding areas of First Amendment law, and Supreme Court justices have struggled mightily through the years to define it.
One of the most perplexing of all speech-related problems has been the issue of obscenity and what to do about it. A wide variety of tests have been employed by individual justices to determine what is constitutionally proscribable obscenity, and for long periods of time, no single approach commanded the support of a majority of the Court. The difficulty of defining obscenity was memorably summarized by Justice Stewart in a concurring opinion when he said: "I know it when I see it. The first commission, The Lockhart Commission, recommended eliminating all criminal penalities for pornography except for pornographic depictions of minors, or sale of pornography to minors.
The phrase " I know it when I see it " is a colloquial expression by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it , and the motion picture involved in this case is not that. The expression became one of the best-known phrases in the history of the Supreme Court.