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1st Amendment and Free Speech/The first ammendment and pornography

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Question
Is pornography protected under the first amendment in the United States? An acquaintance who works for a phone company in the U.S. recently told me that a gentleman called and said him and his wife both had their phone confiscated. He claimed that she had been viewing pornography on the phones(without his knowledge) and that it was illegal. I am confused because I thought porn was legal to make and view in the US, and that attempts by social and religious conservative to censor/ban porn have been unsuccessful in the past because of this. Also, one can order adult movies through their cable companies, there are many places that sell porn etc. So this does not seem right to me. Could it be possible that she was viewing illegal material? As far as I know there isn't much that is illegal out there with the exception of child pornography, which I think is what law enforcement and government officials are primarily concerned with. I hope you can answer my question. Thank you in advance for your time.

Answer
Hello,

Generally speaking, most pornography is considered protected speech under the First Amendment as interpreted by the US Supreme Court.  However, obscenity is not protected.  A century ago, the definition of obscenity included just about anything with sexual content.  However, in a series of opinion in the 1950's through the 1970's, the Supreme Court essentially limited the definition of obscenity to almost nothing.  For a good short summary of the opinions, you might find this link helpful:

http://legal-dictionary.thefreedictionary.com/obscenity

Child pornography is still considered unprotected and is criminally banned.  Aside from that, it would be difficult to find that very much else is clearly and definitively outside of Constitutional protection.

Government cannot ban such materials, but private companies may.  Companies like Facebook ban pornography from their sites and can bar users who fail to comply.  I am not aware, however, of any cell phone companies that bar use of their network or devices for pornography.

Because pornography is considered protected speech does not mean that local authorities may not still attempt to enforce unconstitutional laws that are passed from time to time.  If police or some other government authority confiscated phones for pornography, there would be a number of civil rights groups interested in bringing a legal action to recover them.

I hope this helps!
- Mike

1st Amendment and Free Speech

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Michael Troy

Expertise

I will answer general questions regarding freedom of speech, petition, or religion. My specialty is in cases involving public employment or education, as well as issues related to campaign finance. I can`t give specific legal advice involving specific cases you might have.

Experience

As an attorney for the Center for Individual Rights, I worked on a number of free speech cases, including Rosenberger v. Univ. of Virginia, in which the Supreme Court upheld my clients' right to run a student newspaper without discrimination because of its religious content. I also worked on White v. Julian, which protected the right of people to protest against a homeless shelter in their neighborhood.

I also worked for the Federal Election Commission on several cases regarding the right to participate in the election process and engage in campaign related speech.

Organizations
Former Attorney for Center for Individual Rights.

Publications
Washington Post
Washington Times

Education/Credentials
J.D. from Univ. of Michigan Law School

Awards and Honors
Truman Scholar

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