The Supreme Court determination of obscene material

How does the Supreme Court determine whether material is obscene?

The Supreme Court has held that obscenity, as defined in Roth v. United States, can be regulated by government only if it meets two requirements: First, the regulation must serve a “compelling” interest; and second, the regulations adopted to meet this compelling interest must be narrowly drawn so as not to unduly restrict protected speech. This article will discuss how these principles are applied in cases involving child pornography. It will also examine some of the more recent developments in the area of free expression.

The Obscenity Defense

In order for an individual or organization to successfully argue that certain materials should be considered legally obscene they have to prove three things: first, that the materials depict sexual conduct; second, that such depictions fall within one of four categories of constitutionally-protected expression; third, that no less restrictive alternatives exist which would adequately protect society’s interests without infringing on the constitutional rights of those who wish to view the materials. In addition, any person wishing to challenge the constitutionality of an act passed by Congress may do so under the doctrine set forth in Ex parte Young. Under this doctrine, even though a statute might otherwise violate the Constitution, its enforcement against individuals could still be enjoined when there was proof that the state officials responsible had acted unconstitutionally.

Roth vs. U.S.: A Brief History

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