Most states have harmful-to-minor laws that restrict minors from buying "girlie" magazines. The courts have ruled that while nude pictures may not be considered obscene for adults, they can be considered obscene for children. However, laws that have limited access to indecent or patently offensive speech online as a way to protect children have generally been struck down as overly broad. In this photo, a "ghosted" image of a teen stands before a wide array of pornographic magazines in this double exposure shot in 1964. (AP Photo/Bob Wands)
Harmful-to-minors laws seek to protect those younger than 18 from pornography, obscenity, and other material that may harm them. Sometimes these laws are referred to as child online safety laws.
The laws are based on the concept of variable obscenity — that is, material can be considered obscene when viewed by children and young people though not when viewed by adults. Obscene material is not protected as free speech under the First Amendment and can be regulated by the government. In 1973, the Supreme Court established standards for what is legally obscene in Miller v. California (1973).
The Supreme Court first approved of the concept of variable obscenity (obscene for children, but not for adults) when it upheld a New York harmful-to-minors law in Ginsberg v. New York (1968). Sam Ginsberg, the owner of Sam’s Stationary and Luncheonette in Bellmore, Long Island, had been prosecuted for selling two “girlie” magazines to a 16-year-old boy. The magazines featured pictures of nude women that did not meet the definition of obscenity for adults. But the court found that the pictures were obscene for children. Justice William J. Brennan Jr. reasoned that the New York statute “simply adjusts the definition of obscenity to social realities” and serves the state’s interest in protecting minors.
Nearly every state has some form of harmful-to-minors law. Many of these laws limit the distribution of sexually explicit material to minors. The majority of these laws have survived constitutional challenges. For example, the 11th Circuit Court of Appeals upheld a Georgia law regulating the display of material harmful to minors in American Booksellers v. Webb (11th Cir. 1990). The Tennessee Supreme Court upheld a similar law in Davis-Kidd Booksellers, Inc. v. McWherter (Tenn. 1993).
Harmful-to-minors laws have fared far less successfully in cyberspace, as federal courts have invalidated several such laws. Although the physical world affords a relatively easy way to segregate adult and minor consumers of adult material, the online world presents much tougher challenges. Many reviewing courts have struck down internet harmful-to-minors laws, finding that the state’s laudable interests in protecting minors cannot suppress the free speech rights of adults or older minors.
For example, the 10th U.S. Circuit Court of Appeals ruled in American Civil Liberties Union v. Johnson (1999) that a New Mexico statute criminalizing online transmission of material harmful to minors violated the First Amendment. Other appeals courts invalidated similar laws in PSINET, Inc. v. Chapman (4th Cir. 2004) and American Booksellers Foundation v. Dean (2d Cir. 2003).
Congress has made notable attempts to restrict online material that might be considered harmful to minors. When the Communications Decency Act of 1996, which sought to prohibit “indecent” and “patently offensive” speech on the internet, was invalidated by the Supreme Court in Reno v. American Civil Liberties Union (1997), Congress responded by passing the narrower Child Online Protection Act of 1998 (COPA). However, in Ashcroft v. American Civil Liberties Union (2004), the court upheld a preliminary injunction from the lower courts preventing enforcement of COPA.
The court ruled that software designed to filter out offensive content was a less speech-restrictive alternative to limiting minors’ exposure to online pornography than was a general criminal law such as COPA. On remand, the 3rd U.S. Circuit Court of Appeals in March 2007 granted a permanent injunction against enforcement of COPA, finding that it violated the First Amendment.
David L. Hudson, Jr . is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.
