ACLU Arts Censorship Project

Pornography and the First Amendment

Intense public controversy surrounds efforts to curb material
considered by some people to be "pornographic," "indecent", or
"obscene."  Indeed, the very meaning of such words is
controversial.  The American Civil Liberties Union contends that
all expression, no matter how objectionable or offensive it may
be so some or even most of us, is protected by the First
Amendment's guarantees of freedom of speech and press.  Following
are the ACLU's answers to questions frequently asked by the
public about our position on pornography.

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Why should pornography be entitled to the same constitutional
protections as fine art or political speech?
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We cannot trust the government to make such distinctions. 
History shows us that obscenity laws have often been used to
suppress speech orpublications about sexuality.  For example,
Margaret Sanger was arrested in the 1920s for speaking out about
birth control and abortion.  More recently, _Ms. Magazine_, which
often features articles about sexuality, was banned in a
California community; _Our Bodies, Ourselves_, a well-regarded
feminist book on women's health and reproduction, has been the
target of many assaults.

The U.S. Supreme Court has never been able to come up with a
definition of obscenity that is specific enough to make clear to
artosts, authors, filmmakers, publishers and producers exactly
what is prohibited and what is permitted.  Thus, in recent years
obscenity prosecutions have been brought against a museum
director for exhibiting homoerotic photographs and a music store
for selling rap music.

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I don't think sex education materials should be censored.  But
since most pornography is sexist -- it exploits and degrades
women -- doesn't it violate civil rights statutes?
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Many of the same feminists and others who believe that
pornography is harmful to women aldo caution thta obscenity laws
have always been used to curb womwen's access to information
about sex and reproduction.  A world without demeaning attitudes
toward women is a desirable and worthy goal, a goal that the ACLU
is working to achieve.  But government curbs on speech are not
the way to achieve that goal.  The "civil rights" approach to
pornography may seem attractive but, like all other anti-
pornography measures, it could easily backfire by empowering the
state to control speech, and to use its power to limit more than
just the speech we abhor.  For example, the government might use
its censorship power over speech considered sexist to censor
other speech that might be shocking, but that criticizes
pornography in the course of examining the problem of sexual
violence in society.

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But hasn't it been shown that pornography incites sexual assault
and other violent crimes, and isn't that a justifiation for
curbing it?
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Countless attempts have been made (most recently in the largely
discredited Meese Commission report of 1986) to show that
exposure to pornography causes violent criminal behavior.  Such a
link has yet to be proved.  But even if that connection could be
demonstrated -- and all such evidence is questionable --
censorship of books, magazines or films cannot be justified by
the effects they  _might_ have on _some_ disturbed people. 
Throughout history, passages from the Bible of Shakespeare have
been said to inspire violent acts.  The movie "Taxi Driver"
supposedly inspired John Hinckley to shoot Ronald Reagan in 1981. 
If we were to hold pornographic images or words responsible for
some people's errant behavior, then we would have to ban some of
the world's greatest literature and art.

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Surely some exception must be made for child pornography?
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The sexual exploitation of children is a crime.  Criminal,
sexually abusive acts committed against children -- _not_ books
or films that depict such criminal acts -- should be vigorously
prosecuted.  As for young people's access to pornography, the
ACLU has found that efforts to render material inaccessible to
minors generally end up restricting the freedom of adults as
well.  Parents, not the government, should monitor their
children's reading and viewing habits.

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The courts don't agree with you that all expression about sexual
matters is protected by the First Amendment, so why do you keep
at it?
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We keep at it because civil liberties are always under attack
and, therefore, must always be defended.  Our commitment to
protecting all the freedoms guaranteed by the Bill of Rights
requires our constant presence in the courts, in legislatures,
and in forums of public opinion.  It may take years to prevail in
thse arenas, but in the meantime we seek as much as possible to
limit the scope of obscenity laws, to mitigate penalties, and to
ensure that they are applied only in compliance with due process
of law.

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The American Civil Liberties Union, founded in 1920, is non-
partisan and is the nation's only organization devoted solely to
defense of the Bill of Rights.  Our Arts Censorship Department,
established in 1991, combats censorship of artistic expression,
including expression related to sexuality.