10 Things That Aren't Free Speech

Japanese artist Megumi Igarashi shows small mascots shaped to represent vaginas, at a press conference after her first trial hearing in Tokyo. Igarashi was arrested on obscenity charges for distributing 3D scans of her own genitals. YOSHIKAZU TSUNO/AFP/Getty Images

The Supreme Court first tackled the issue of obscenity and freedom of speech in the 1957 landmark case Roth v. United States. A jury convicted publisher Sam Roth of using the mail to advertise and distribute material with sexual content. Through his New York bookselling business, he mailed circulars and a book with sexual content — "The Story of Venus and Tannhäuser," by Aubrey Beardsley. Roth fought back, alleging the federal obscenity restrictions infringed upon his freedom of speech. But the Court ruled against Roth, saying obscene speech is not protected under the First Amendment [sources: PBS, Oyez].

Then, in 1973, Californian Marvin Miller sent out a mass-mailing advertising "adult" material for sale. Some brochure recipients complained to the police, and a jury later convicted Miller of violating a state statute prohibiting such an action. Miller appealed his conviction all the way up to the Supreme Court, which upheld Miller's conviction and established its now-famous "three-pronged test" for obscenity. Something is obscene, the Court ruled, if [sources: FindLaw, Hudson Jr.]:

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

The Court's ruling also said juries can determine offensiveness by local standards, not a national one [source: PBS].