Indecency and Speech That is Harmful to Minors

In contrast to obscene material – which is illegal for adults – speech that is considered "harmful to minors" or “indecent” is lawful for adults, but may be inappropriate for minors.  Harmful-to-minors or indecent speech is protected under the First Amendment for adults, but in certain cases, access to such speech may be limited or regulated to shield minors from it.  While such speech cannot be banned in the same way as obscenity or child pornography, it can be segregated, and access to it may be limited such as by laws that require adult-oriented movies or magazines to be shielded from minors in retail stores, and not sold to minors.

Much like obscenity, the terms indecent and harmful-to-minors are somewhat difficult to define, and those two terms have are often merged as a practical matter.  Courts have generally found that the government may regulate indecent material to the extent that it is harmful to minors.

Although most laws aimed at regulating speech on the Internet have been struck down, such laws are very popular with legislators and some advocacy groups, and new proposals are introduced frequently.

However, even regulations enacted to protect children must satisfy the requirement that they employ the least restrictive means to achieve that goal. Among other things, this guards against using a child-protection rationale as a pretext, and protects the rights of adults to access material that is considered unsuitable for minors. 

Recently, the Communications Decency Act (CDA), which was enacted with the express purpose of protecting children from indecent online communications, was held to violate the First Amendment. The Supreme Court criticized the ambiguous reach of the law, and found there was a less restrictive means of protecting minors: parental controls and filtering software. The Court said CDA would have had a chilling effect and would be an outright impediment to the exercise of many adults’ First Amendment rights. The Court stated, “we have repeatedly recognized the government interest in protecting children from harmful materials. …But that interest does not justify an unnecessarily broad suppression of speech addressed to adults…. ‘[R]egardless of the government’s interest’ in protecting children, ‘[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.’” (Reno v. ACLU)

The test most frequently used by courts to determine whether speech is indeed harmful to minors is a modified Miller obscenity test: 

• Whether the average person applying contemporary community standards would find that the material taken as a whole would appeal to minors’ prurient interest in sex;
• whether the material depicts an actual or simulated sexual act in a manner patently offensive by community standards as applied to a minor; and
• whether the material, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. 

Related Cases

Ashcroft v. ACLU--A challenge to the Child Online Protection Act, which regulated online pornography. 

Bantam Books, Inc. v. Sullivan--A publisher challenged Rhode Island's "Commission to Encourage Morality in Youth"; The commission suppressed obscene and indecent materials. 

Bellospirito v. Manhasset Public Library--An artist challenged the Manhasset Public Library's policy against displaying nudes. 

Erzoznik v. City of Jacksonville--Eroznik challenged the city's ordinance which prohibited showing movies containing nudity at drive-in theaters if the screen could be seen from a public space.  

Interstate Circuit, Inc. v. City of Dallas--A film distributor challenged Dallas' ban on the film "Viva Maria." 

Jones v. FCC--The FCC fined a radio station for its broadcast of Sarah Jones' rap song. Jones challenged the fine. 

NEA v. Finley--NEA-funded photographs by Mapplethorpe and Serrano were met by controversy, and Congress amended the NEA's mandate to include considerations of "decency." A group of artists challenged the amendment. 

Nitke v. Gonzalez--Nitke, a photographer, challenged the Communications Decency Act (CDA) which prohibited the transmission of obscene materials to minors. 

Reno v. ACLU--A challenge to the Communications Decency Act (CDA), which criminalized the transmission of obscene or indecent messages to minors. 

United States v. American Library Association--A challenge to the Children Internet Protection Act(CIPA) which regulated the accessibility of pornography in pubic libraries.