Standing on the Rock,
in the midst of the Wasteland....

Unto thee will I cry, O LORD my Rock;
be not silent to me:
lest, if thou be silent to me,
I become like them that go down into the pit. 
                                                                                                                            Psalm 28:1

In Miller v. California (1973), the Supreme Court stated, "This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment."

 

Some argue the words of the First Amendment -freedom of speech- include all speech. Yet there are laws against consumer fraud, conspiracy, libel, slander or falsely shouting ‘fire’ in a crowded theater. Many assume if pornography is available in a community, it is legal. This simply isn’t so: there is a difference between enacting and enforcing legislation. Many prosecutors have limited resources as to the obscenity and pornography laws of their community. Since they tend to respond to the most clearly expressed priorities of their constituents, community inaction can be mistaken for community approval.

 

What’s legal?

• Material that is illegal to possess refers only to child pornography. The very existence of child porn is considered "contraband," or illegal because the very act of photographing a child in any sexual context is abusive. Thus, when technology enabled pedophiles to prepare "synthetic" child pornography (digitally blending an adult body with a child’s face, or vice versa), the law was extended to include such material.

 

• Material that is legal to possess but illegal to distribute. Much hard-core pornography has this standing, although the term includes a broad spectrum from "just beyond" soft-core to erotica. The legal term for prosecutable hard-core pornography is "obscenity," which is defined by the following Miller test:  Would the average person, applying contemporary community standards, find that:

 

(a) the material taken as a whole, appeals to an unwholesome ("prurient") interest?

(b) the material depicts specific defined sexual conduct in a patently offensive way?

(c) the work taken as a whole lacks serious literary, artistic, political or scientific value?

 

• Material which is illegal to distribute to minors includes the legal terms "indecent" and "harmful to minors" --material which has First Amendment protection for adults but not for minors because of the surpassing value of protecting the young. Restrictions on broadcast indecency and telephone pornography extend into this category, as does much concern about Internet porn.