October 25, 2018 By Stephen Klarich

Is it art or is it illegal? That is the central question behind many of the cases involving pornography that have made their way to the Supreme Court in the last century. In many cases, a person charged with a crime involving pornography has been able to use the First Amendment freedom of expression as a legal defense. The basic principal behind the argument is that if the material has artistic value, you have the right to create and distribute it under the First Amendment.

But does the First Amendment apply to child pornography? The answer is no. Why not?

The First Amendment and Pornography

Nico Jacobellis was the manager of an art house movie theater that exhibited a French film called “Les Amants” (The Lovers) in 1964. The local community considered this movie obscene and fined Jacobellis $2,500.

Jacobellis appealed his case all the way to the U.S. Supreme Court, which overturned his conviction in Jacobellis v. Ohio, 378 U.S. 184 (1964). However, the Court struggled with a definition for what should be considered “hard-core pornography” versus what is artistic expression. Justice Potter Stewart, in his concurring opinion in the ruling, famously wrote, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; 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.”

Nine years later, in Miller v. California, 413 U.S. 15 (1973), the court came up with a definition of what is obscene and therefore not protected by the First Amendment. The case introduced the following test for obscenity:

  • Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest
  • Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
  • Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value

The Miller test means that there is still room for states to pass laws that prevent production, possession and distribution of “obscene” material, but the state must show that the material it seeks to ban passes this test.

Why Child Pornography is Not Protected by the First Amendment

The Miller test is not an absolute. The court has ruled that there are other concerns that can override whether a material has “serious literary, artistic, political or scientific value.” Such is the case with child pornography.

In New York v. Ferber, 458 U.S. 747 (1982), the court held that states have a compelling interest of “surpassing importance” to protect children from sexual exploitation because children are not legally able to consent to sexual activity. The ruling has been applied to the private possession of child pornography because such laws aim to destroy the market for sexual exploitation of children.

While invoking the First Amendment may defeat charges related to adult pornography, the Supreme Court has ruled that it is not a valid defense to child pornography charges.

Our Experienced Child Pornography Defense Attorneys Can Help You Now

If you or someone you love is facing state or federal child pornography charges, you should contact our experienced child pornography defense attorneys at Wallin & Klarich immediately. Our skilled sex crimes lawyers have been successfully defending clients accused of child pornography charges for more than 35 years. Let us help you now.

With offices in Orange County, Riverside, San Bernardino, Victorville, Torrance, West Covina, Los Angeles and San Diego, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you are located.

Contact our law offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.

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