Obscenity and Free Speech: An Awkward Coexistence

This is the second in a series of essays looking at the challenges of a commitment to free speech. The first, on what it means to be a free speech absolutist, can be read here.

Hell hath no fury like a woman who looks at her boyfriend’s private phone messages before he can delete the nude pics his ex-girlfriend just sent him.

When Rebekah VanBuren saw the photos Anthony Coon’s ex-girlfriend had sent through Facebook Messenger, she didn’t respond with grace and equanimity. She wanted to “get revenge.” So she posted the images on social media and tagged the ex-girlfriend, whose identity police and the courts have protected, to shame and terrify her. It worked.

The ex-girlfriend desperately wanted them taken down. She reached out to Coon but instead spoke with VanBuren, who rubbed her rival’s face in the humiliation. She called the distraught ex-girlfriend a “moral-less pig” and promised to “ruin” the terrified woman by “inform[ing] her employer—a child care facility.” The victim wept, confided in her co-workers, went home from work early and called the police.

VanBuren either didn’t realize or didn’t mind that, under Vermont’s freshly minted “Revenge Porn” law, she had become a suspected sex criminal. When an investigating officer called to question her, she readily admitted to publicizing the salacious pics. She even seemed a little proud of herself. “[Y]ou think she learned her lesson?” she asked the cop.

While the Vermont Supreme Court ultimately dismissed VanBuren’s case, ruling that the ex-girlfriend had forfeited her right to privacy by sending photos to someone she was no longer in a relationship with, it upheld as constitutional the law under which she was charged so it could be enforced against others. Vermont’s law was passed a decade ago, as our criminal justice system was just beginning to grapple with the issue of posting nonconsensual sexual images online. Since the law’s passage, the effort to eradicate the sharing of such images, and to punish behavior like VanBuren’s, has intensified into a national crackdown.

These laws can be tough even for the most committed free speech absolutist to oppose. Publishing nude images without the consent of the person depicted can cause deep, lasting harm. It attacks the photographed person’s privacy and dignity, often causing emotional distress and reputational harm. Whatever meager benefits to art, culture and the public discourse that arise from publishing these pictures is almost certainly outweighed by the damage they cause. Nearly all of us agree that posting such pictures is cruel and indecent behavior. So why not scrub them from the internet and send those who upload them to prison?

While free speech requires “freedom for the thought that we hate,” it can be difficult, even for the most committed absolutists, to rally to the defense of expression that hurts other people. This is even more true when the censorship at issue is wildly popular, as these nonconsensual pornography statutes are. To free speech absolutists, opposing them can be a test of moral courage.

The Federal Government’s Unconstitutional Action

Now, the federal government is following in states’ footsteps. The “TAKE IT DOWN Act,” which President Trump just signed into law, punishes “the publication of non-consensual intimate imagery” depicting adults with up to two years in federal prison. The act passed 409-2 in the House and unanimously in the Senate. In a polarized Congress that can’t seem to find consensus on anything, this piece of legislation couldn’t have drawn more bipartisan support if it were called the “Stop Stomping on Kittens Act.” The National Organization for Women, generally opposed to anything within the same hemisphere of Trump’s legislative agenda, just announced its support.

The TAKE IT DOWN Act is the culmination of more than a decade of advocacy from a cadre of feminist legal scholars and political activists determined to transform the internet into what they believe will be a safer space for women. Professors Danielle Keats Citron and Mary Anne Franks, leaders of this movement, have argued that cyberspace is largely a toxic wasteland of hate crimes, harassment and misogyny. Their landmark 2014 article “Criminalizing Revenge Porn” has been cited by prosecutors, judges and other experts around the country thousands of times. Since its publication, the Cyber Civil Rights Initiative, the organization Citron and Franks have spearheaded, has advanced one of the most successful political efforts of the 21st century: All 50 states have criminalized nonconsensual pornography. Franks herself drafted the very first model criminal revenge porn law in 2013, and parts of the TAKE IT DOWN Act mirror it.

The new federal law will impose a national ban on the publication of both actual and AI-generated nonconsensual nude and pornographic images. The net it casts is far-flung and comprehensive. It captures the most explicit images, to be sure, but also mere nudity that, in other contexts, is no lewder than scenes from mainstream Hollywood entertainment. Under this law, citizens can be prosecuted for uploading a picture of their celebrity crush’s “post-pubescent female nipple” to the internet without first getting her consent, for example.

The federal government may be in for more work than it bargained for. There is an astronomical amount of porn online (or so I hear). Countless new images are uploaded every day. Even if just 1% of the uploads that lack consent are prosecuted, the number of federal agents, prosecutors, public defenders, jailers and tax dollars required to enforce the TAKE IT DOWN Act may be substantial. If fully enforced, it could prove the most consequential anti-pornography law since the notorious Comstock Act of 1873, which made it a federal crime to put “obscene” material in the U.S. mail.

While politicians in both parties are high-fiving each other over its passage, the new anti-porn legal regime they’ve created suffers from at least one important defect: It’s unconstitutional. The First Amendment reads that “Congress shall make no law ... abridging the freedom of speech.” Congress’ new law does one, and only one, thing: abridge the freedom of speech. It’s literally called the “TAKE IT DOWN Act.”

While Citron, Franks and their allies are wont to test the limits of professorial sophistry by arguing that nonconsensual porn laws don’t violate the First Amendment, or even that they involve no censorship whatsoever, the text, history and tradition of the amendment’s free speech clause say otherwise. Citron and Franks realized from the start that the First Amendment would be their primary obstacle to getting nonconsensual pornography laws passed. For that reason, nearly all their scholarship on this issue has been dedicated to convincing readers that “no law” actually means “some laws.”

Fortunately for them, the Supreme Court has opened the door to their pro-censorship arguments by adopting a balancing approach to its interpretation of the First Amendment, rather than an absolutist one. This approach requires courts to weigh competing social interests against the right to free expression. To show that the harms of nonconsensual porn outweigh the benefits of free speech, “Criminalizing Revenge Porn” emphasizes the horrors that victims of nonconsensual porn endure.

The balancing approach has invited this kind of emphasis as a litigation tactic: Aspiring censors—of racial slurs, threats, misinformation and myriad other causes—regularly deploy it. It often works, both because victims often are genuinely harmed and because it puts those defending free expression in the awkward position of appearing to minimize that harm, even when they really aren’t. Citron and Franks have mastered this line of argumentation. And, generally, courts have tipped the balance in their favor.

The Problem With Defining Obscenity

Pornography has traditionally been regulated under the obscenity exception to the First Amendment. “Obscenity” is a legal category of expression that the Supreme Court regards as “offensive” and “low-value,” and for that reason, it isn’t protected by the First Amendment. Free speech absolutists abhor the court’s balancing approach in every context, but they have always regarded the obscenity exception, which has allowed the federal government to treat works of erotic art and literature like narcotics, guns or any other type of criminal contraband, with special contempt.

Over the past century, the obscenity exception has silenced comedians and music groups, pulled books off of shelves and consigned photos and reels of film to police evidence rooms. It’s put the hands of the government over the eyes of adults and around the throats of artists. It embeds fear and power—without reason—into our criminal laws. It’s also resulted in the most confused and embarrassing line of opinions in the Supreme Court’s history.

Federal prosecutors have refrained from filing obscenity cases for the past several years: Given all the other nefarious activity transpiring on cyberspace, adults looking at dirty pictures of other adults hasn’t been a high priority. However, that may be about to change. In addition to the passage of the TAKE IT DOWN Act, Congress is now considering two other anti-pornography bills, one for the express purpose of “more easily” prosecuting “obscene” publications. If the past is any guide, we may be on the verge of opening a Pandora’s box of irrational and confusing new censorship rules.

The Supreme Court’s modern definition of obscenity was formulated in 1957 and, in response to the perceived excesses of the sexual revolution, modified into its current stricter incarnation in 1973. It seems to boil down to three basic criteria, all of which need to be proven before the speech in words or pictures can be censored: They must be sexually titillating (“appeals to a prurient interest”), “patently offensive” and without “serious ... value.” All three prongs of the obscenity test are abstract, vague and require answers that exist solely in the eye of the beholder.

In the mid-1960s, Lenny Bruce was convicted for performing his standup comedy act, for instance, because he used profanity and crudely described sex. That judgement drew widespread criticism, and Bruce was (posthumously) pardoned. Yet in 1990, the ghost of that conviction deterred Andrew Dice Clay from performing his act after a prosecutor said it might violate obscenity laws. In 1973, the Georgia Supreme Court ruled that Mike Nichols’ film “Carnal Knowledge,” which deals with sexual relationships and shows nudity, was obscene. The following year, the Supreme Court of the United States unanimously ruled that it wasn’t.

Obscenity is a legal nonsense word, as these and countless other examples show. Because it means nothing, it can be used to punish virtually any candid expression about sex—and at one point or another probably has. In practice, the obscenity exception allows those with enough power to ban whatever sexual speech they happen to find offensive. At its core, it’s no more complicated than that. Bold, unpopular speech that pushes boundaries can never be expressed without risk.

The Supreme Court realized that it had stepped into doctrinal quicksand right after it first affirmed the obscenity exception in 1957. In case after case, the justices disagreed with one other about whether the material in front of them fell under the exception. A 1964 case resulted in perhaps the most famous admission in the court’s history. Justice Potter Stewart believed only “hardcore pornography” could be obscene. However, defining that phrase proved just as impossible as defining obscenity, so he simply shrugged and called it quits. “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so,” he explained. “But I know it when I see it ... ”

With the emergence of hippies, free love and “porno chic,” American culture was flooded like never before with erotic media. The Supreme Court was bombarded with obscenity cases and, with the exception of the two free speech absolutists, Justices Hugo Black and William O. Douglas, had no clue how to coherently rule on them. To spare itself frustration and embarrassment, it stayed silent. According to Dean Erwin Chemerinsky, between 1967 and 1973, the court decided 30 obscenity cases without publishing any opinions.

Finally, Justice William Brennan, who’d written the 1957 opinion affirming the obscenity exception, realized he’d set the court on a fool’s errand and reversed his position. “After 16 years of experimentation and debate I am reluctantly forced to the conclusion that none of the available formulas ... can reduce the vagueness to a tolerable level. ... I am forced to conclude that the concept of ‘obscenity’ cannot be defined with sufficient specificity and clarity,” he wrote. However, by 1973 President Nixon had appointed four new justices committed to perpetuating the exception, resulting in a 5-4 decision that entrenched it into our law to the present day. Brennan’s change of heart, written in dissent, came too late.

The obscenity exception is based in mankind’s perpetual moral panic about sex. Its function is to control the sex lives and sexual identities of citizens by limiting the distribution of ideas that convey erotic thoughts and feelings. It does this by publicly shaming and punishing those who express unusual or aberrant sexual predilections. In People v. Friede, gays were the target. In Mishkin v. New York, it was sadomasochists (gays, too). With nonconsensual porn statutes, the targets are primarily misogynists and voyeurs.

According to Franks, “an entire sexual humiliation industry has sprung up online fed by embittered exes and misogynist consumers” and “The ‘revenge porn’ consumer is not aroused by graphic sexual depictions as such, but by the fact that the people in them—usually women—did not consent to being looked at.” To her, the gratification of such bad sexual tastes should be criminal. Both in their article and in a legal brief filed by their organization, Citron and Franks support the use of the obscenity exception as a means of censorship. At least one court so far (later overruled) has agreed with them.

It should go without saying that harmful conduct, as opposed to speech, that is misogynistic or voyeuristic shouldn’t be tolerated. The First Amendment protects neither physical abuse nor peeping Toms who intrude into private spaces and take pictures. For instance, the creep who recorded a nude video (which ultimately went viral) of ESPN sideline reporter Erin Andrews through a peephole in her hotel room was rightly convicted in federal court and sentenced to more than two years’ imprisonment. However, nonconsensual pornography laws make sex offenders out of those who merely watch such videos online and pass them along—defendants who never leave their own home. While the first type of voyeur belongs in cuffs, the Constitution requires that we leave the second type alone. The best way to protect victims, while preserving liberty, is through public condemnation, education, persuasion and cracking down on stalking and similar bad acts.

Prudish Courts, Strident Activists

Porn can be used for both good and bad purposes. While often abused, it can also eliminate irrational taboos and awaken one’s truthful latent sexuality. Human sexuality is a wilderness of perplexity. In a free society curious adults should be allowed to explore.

But this has never been the view of our government and our courts. Many of the greatest novels of sexual exploration—including those by D.H. Lawrence, James Joyce and Henry Miller—have been ruled obscene by American courts. In 1998, the Modern Library put books by all three of these authors on their list of the top 100 English-language novels of the 20th century, with Joyce’s notoriously banned “Ulysses” in the top spot. Book burning, or its digital equivalent at least, is hardly a thing of the past when the writings are judged obscene.

The Supreme Court has made it clear that offensive texts about sex can be just as criminal as offensive pictures. A federal appellate court ruled works of written fiction to be criminal contraband just 10 years ago: Two fiction writers, Karen Fletcher and Frank McCoy, were convicted of publishing obscenity online, because their stories contained descriptions of child sexual abuse. While there was no judicial opinion in Fletcher’s case, the one affirming McCoy’s conviction shows that the offensive descriptions in his stories weren’t the only reason that he was, or any other authors of obscenity are, convicted. Because only “low-value” speech can be obscene, filthy books, no matter how offensive or harmful, retain First Amendment protection if they have literary value. In other words, Frank McCoy wouldn’t have been punished if he’d been a better writer.

Vladimir Nabokov, whose masterpiece, “Lolita,” is written from the perspective of a desirous pedophile, never faced prosecution. In fact, “Lolita” ranks number four on the Modern Library list mentioned above. Similarly, books by the Marquis de Sade, who incorporated child sexual abuse into his massive oeuvre of written pornography, are studied as classic literature and can be purchased on Amazon. McCoy argued during his trial that his writings should be similarly appreciated as art. The chair of the Mercer University English department testified that McCoy had deployed “complex literary techniques within his body of work that develop the characters and further the plot line” and that the “work has serious literary value.” The court disagreed with the professor—“The stories contain tenuous plots at best”—so McCoy’s conviction was upheld. The obscenity exception inevitably turns members of the federal judiciary into literary and film critics—a true crime against decency, if ever there was one.

After his obscenity conviction, McCoy was found to have had pornographic pictures of children on his computer. Like obscenity, child pornography isn’t protected by the First Amendment. However, the two exceptions shouldn’t be confused with each other. Unlike obscenity, the child pornography exception applies only to pictures of abused and exploited children and is meant to serve the state’s compelling interest in protecting kids from harm. McCoy was convicted a second time for this different crime and given a lengthy prison sentence. The stories that resulted in McCoy’s obscenity conviction were purely the product of his imagination, which is something very different.

While it’s impossible to know what legal obscenity is, the court should be credited for telling us pretty clearly what it can never be. It can’t be mere nudity. The controlling definition, from Miller v. California, states that it must at least contain “ultimate sexual act[s], normal or perverted, actual or simulated ... masturbation, execratory functions, and lewd exhibition of the genitals.” The court has ruled more than once, including in the “Carnal Knowledge” case, that R-rated style nudity doesn’t rise to the level of lewdness required by the Miller standard.

Advocates of nonconsensual porn laws, including the prosecutor in VanBuren’s case, argue otherwise. They claim that the absence of permission makes publishing mere nudity “patently offensive” and therefore obscene. According to this theory, the offensive conduct of the publisher can transform an otherwise nonobscene picture into an obscene one. The problem with this argument is that it clearly uses censorship to promote a moral and political point of view. It isn’t the picture per se, but the offensive misogyny or voyeurism of the publisher, that is being punished—and, if the First Amendment prohibits anything, it is this type of morality-based viewpoint discrimination. Whether Paris Hilton’s nonconsensually published sex tape became more or less offensive after she agreed to keep it on the market and take a percentage of the profits is for a free people to debate and decide.

Censorship is always thrust by the strong upon the weak and, in the end, it always punishes those it’s meant to protect, as the stories of women like Rebekah VanBuren, Bethany Austin and Jamiya Lee make plain. Nonconsensual pornography laws don’t really protect women as much as they protect an idea, rejected by some women, about how the government should provide them with protection. According to Franks’ published academic resume, she authored briefs supporting the prosecutions of VanBuren and Austin. Disobedient women should expect no quarter.

In fairness, Franks has expressed ambivalence about using the obscenity exception to advance her cause. She prefers to argue that nonconsensual porn laws are constitutional for other reasons (answered by different First Amendment objections). However, the reluctance with which she's used the obscenity exception has nothing to do with concerns about free speech. Instead, she's worried that ruling photos of women’s bodies obscene might “reinforce” that they are shameful and “be in tension with the goals of anti-subordination and gender equality.” To Franks, nonconsensual pornography laws are a means of advancing these political and ideological goals. The First Amendment, even with its obscenity exception, is an annoying impediment. “[O]ver and over again,” she writes, “speech favoring white male supremacy—racist, sexist, homophobic, transphobic—is characterized as ‘free speech’ that must be defended.” Better to get rid of its protections altogether.

In 2021, Franks announced that the very idea of free speech as it exists in the First Amendment needs a “redo” and should be revised so that speakers are “subject to responsibility for abuses.” Virtually all of her writings on this issue clearly announce which views she finds abusive and which speakers she hopes to hold responsible. Pornography, she claims, exemplifies the “white male supremacist” speech that should be called to account.

A lawyer for one of the defendants whose prosecution the Cyber Civil Rights Initiative supported once accurately referred to that organization as a “single-issue advocacy group.” Since its founding in 2013, its raison d’etre—the finish line it’s been trying to cross—has been a nationwide ban on nonconsensual porn. One might expect them to regard the TAKE IT DOWN Act as their crowning achievement. Yet the CCRI opposed its passage, and Franks called the provision that requires tech companies to remove pictures a “poison pill.” The 2024 presidential election may be the reason.

At its core, the censorship of sexual expression is always the censorship of political expression. To Citron and Franks, Donald Trump is a repulsive figure who embodies the very attitudes toward women they’re trying to eradicate. Citron and a co-author have urged that he be banned from social media for life. Franks described First Amendment claims made against Trump’s ban as “misguided,” “dangerous” and, without irony, “Orwellian .” That Trump’s views reflected those of the millions of Americans who'd elected him president was, to Citron and Franks, an accelerant, not a deterrent, to censorship. Referring to the 2016 election, Franks claimed that Trump was “elected President on a platform of misogyny, racism, and xenophobia.”

Politically, laws that censor based on viewpoint often cut both ways. The longtime crusaders against nonconsensual porn are worried that, instead of misogynists and voyeurs, Trump will target sexual expression from those that he opposes but whose causes they endorse. “CCRI cannot support legislation that risks endangering the very communities it is dedicated to protecting, including LGBTQIA+ individuals, people of color, and other vulnerable groups.” On social media, Franks warns that “Parts of the TAKE IT DOWN Act are more likely to become a sword for a corrupt presidential administration than a shield to protect NCII [nonconsensual intimate images] victims.”

They cite other, nonpartisan reasons for their opposition, as well. Perhaps they’re sincere about those reasons, but it’s hard to imagine them refusing to trust Kamala Harris, with whom they’ve both worked in the past, with the TAKE IT DOWN Act’s powers. If Harris had won the last election, Citron and Franks may have even been invited into the Justice Department to wield these powers on her behalf.

Generally speaking, there are two types of people who oppose the obscenity exception to the First Amendment: sexual perverts and free speech absolutists (categories that I suppose aren’t necessarily mutually exclusive). It’s often difficult for those of the second type to defend the rights of those in the first. This is why even most of the normally principled civil libertarians in Congress voted in favor of the TAKE IT DOWN Act.

To absolutists, the legal question isn’t a close one. To delete photos from the internet and to put those who publish them in federal penitentiaries would be acts of censorship which the First Amendment, not yet “redone” by Franks and her allies, still clearly prohibits. However, defending the rights of the creeps who publish this content will be neither fun nor easy. Supreme Court justices, who enjoy lifetime appointments precisely so they can defend unpopular liberties, should relieve the absolutists by striking down the TAKE IT DOWN Act as soon as possible and, finally, ending the obscenity exception.

Constitutional law can be complex and frustrating, but sometimes it can be refreshingly simple: When it comes to the publication of pornography, “no law … abridging the freedom of speech” should mean no law.