The Comstock Law, passed in the United States in 1873, was part of an ongoing – to this day! – campaign to legislate public morality in the United States. The Comstock Law was initially meant to stop the trade in “obscene literature” and “immoral articles,” particularly through the mail. It was named after Anthony Comstock, an ultra-religious moralist and anti-vice crusader given the task of determining what materials should be deemed immoral or obscene. Comstock’s definition of obscenity was broad enough to cover virtually every vice that he personally disapproved of. He appropriated the concept from an important 1868 English court case: Regina v. Hicklin.

The ‘Hicklin test’ attempted to determine “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.” This standard was adopted by Comstock and expanded throughout the United States to varying degrees. It also covered the postal service, making it illegal to send “materials which could be used to corrupt the morals of the young” through the mail. Another condition of the Hicklin Test was even more controversial: material could be taken out of context and presented as immoral on its own. If only a portion was deemed to be unacceptable, the entire work was considered obscene.

The Comstock Laws affected more than just pornographers, however. They had a negative impact on women’s issues like abortion rights and female suffrage. Also gays, radicals and free-thinkers of all stripes. Moral watchdogs used the Comstock law to impose their own strict views of morality, and Comstock and his wealthy backers were at the forefront of molding the definition of moral decency in America.

Despite all of its flaws, the Comstock Laws remained the established standard test for obscenity until 1957 when the Supreme Court finally created a legal definition of obscenity. Following a 6-to-3 decision, written by Justice William J. Brennan, the Court upheld that obscenity was not “within the area of constitutionally protected speech or press.” He noted that the First Amendment was not intended to protect every utterance or form of expression – materials that were “utterly without redeeming social importance.”

The most important facet of the Court’s decision held that the test to determine obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” The Court agreed that this definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process.

Miller v. California was the landmark Supreme Court case which clarified the definition of what constitutes obscenity in regards to the First Amendment. The decision reaffirmed that obscenity was not protected by the First Amendment, and established yet another test – the Miller Test – for determining what constituted obscene material as opposed to regular pornography.

The Miller Test employed three basic guidelines to determine if material is obscene: 1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest (similar to the previous standards); 2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, 3) if the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Clearly, this definition creates even more ambiguity, and makes it even harder to determine the difference between pornography and obscenity – especially in the context of ‘contemporary standards.’ As times change, society is constantly being transformed. Moral standards are always in a state of flux and much harder to define. The average citizen in a major metropolitan area might have a vastly different view of morality than someone living in a rural,  mostly homogenous [white, ultra-religious] community.

I would argue that the vast majority of modern popular culture certainly lacks any “serious artistic or redeeming value,” and therefore if the Miller Test were applied to the letter most of the entertainment people enjoy today would be eliminated.

The Internet is the most participatory form of mass free-speech yet developed and the advent of instant access has presented the courts with a unique new set of problems. The Supreme Court says the Web is a “unique and wholly new medium of worldwide human communication.” The vast, truly democratic forums of the Internet have not historically been subject to the same type of governmental regulations or restrictions as the broadcast or print industries. The ‘community standards’ test was developed before the World Wide Web made geographical boundaries irrelevant. Unlike traditional retail outlets for pornography, the Web is not geographically limited, rendering morality laws virtually meaningless.

The ‘slippery slope’ argument has been used to justify the Supreme Court’s hesitancy to restrict pornography – which is still considered free speech under the Bill of Rights. The argument follows that if we restrict pornography it would surely open the door to restrictions eventually being placed upon other forms of free-speech. The Court has made a clear distinction between pornography and obscenity. The Justices have historically upheld that pornographic materials which pass the Miller Test do not warrant suppression.