opinion

Viewing Rights - The Constitutional Right to View Erotic Material

Lawrence Walters

What are your constitutional rights when it comes to viewing pornographic, violent or controversial material in your own home? This is a question we frequently address as First Amendment attorneys, and on which there is still some confusion in the minds of consumers.  Is there a right to view or possess pornography?  What about obscenity?  The answer to both of these questions, under the First Amendment to the United States Constitution and the Right of Privacy, is indisputably yes.

Stanley v. Georgia was a U.S. Supreme Court case in which the home of Robert Stanley, a Georgia resident, was searched by police. Stanley was previously convicted of bookmaking, and was suspected of conducting such nefarious activities again. Police had a warrant to search his home for bookmaking paraphernalia, and instead, found pornographic material in a drawer. Under Georgia law, it was a crime to possess obscene materials. Stanley was charged and convicted, and the conviction was upheld by the Supreme Court of Georgia.

That was not the end of the Stanley’s story, however. The U.S. Supreme Court overturned the conviction, and in the process made clear that all state laws criminalizing the mere possession of obscenity were invalid. In doing so, the Supreme Court noted that there is also a fundamental “right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.”  Regarding the notion that the State of Georgia could control the contents of an individual’s personal home library, the Court said this was “wholly inconsistent with the philosophy of the First Amendment.”

Out of Stanley comes the legal principle that individuals are free to possess and view pornography, even if that material is considered obscene, in their own homes. Stanley placed no specific restrictions on the content or subject matter of the materials. Individuals are free to possess extreme erotic material in their own homes, and may additionally view whatever fetish or subject area they wish.

This right is not absolute, however. The right to view pornography comes with one important limitation: the prohibition against even mere possession of underage material. In Osborne v. Ohio, the U.S. Supreme Court held that states’ prohibitions on the mere possession of child pornography are not inconsistent with the First Amendment and therefore, even private possession of child pornography is illegal. What constitutes possession, however, varies by state. Some states have court rulings or statutes saying that viewing without downloading constitutes possession, while other states require active downloading onto the hard drive to meet the possession threshold. Under federal law, “receipt” of child pornography via the internet or other interstate transmission is prohibited as well, thus triggering potential federal penalties for these acts.

Importantly for advertisers and operators of adult websites, the U.S. Supreme Court has held that it is also illegal to promote something as containing underage materials even if it actually includes only adult performers, pursuant to federal “pandering” laws.  Importantly for viewers, anything that is suggested to be underage material may actually contain such material, so it would therefore be best not to access such materials at all. Additionally, “morphed” or “photoshopped” images, containing the bodies of adults but the heads or faces of minors, have been the subject of recent and conflicting court decisions.  Nonetheless, consumers are warned to avoid this content as well, given the potential risks.           

Aside from the possession of underage materials, what is legal to view in your own home is a large category and includes exceedingly controversial content; such as images of violence, animal cruelty, and even “virtual” underage images, videos, cartoons or drawings. For violent images, there is interestingly no limit to the amount of simulated or real violence that can be viewed, as obscenity laws only apply to sexually-oriented materials. Although extremely controversial or violent materials may be legal to view, one must make his or her own personal decision whether to support or endorse content depicting self-harm or individuals being exploited. Another important point for viewers to note is that downloading a video depicting a real crime of violence may place you in the position of possessing relevant evidence, and subsequently destroying such evidence may, itself, be a crime.

Excepting the possession of underage materials, as noted above, individuals are free to view and possess a wide variety of violent and erotic content in their own homes, without fear of criminal prosecution.  The First Amendment needs sufficient “breathing room” to survive, and part of that is tolerating the private possession of material that might be illegal in other contexts, like obscenity.   However, with the widespread use of smart phones to create a diverse amount of both erotic and violent material, substantial questions remain regarding the legality of “producing” images that might be perfectly legal to possess. 

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