Q: My local city-run senior center censors books, magazines, films, internet and bulletin-board postings.
Though it is a senior center, they pretend to have the right to ban pornography or whatever they deem ”inappropriate.”
As a senior citizen, I say I have the right to full internet access, to put off-color books, magazines and films in the library, and to communicate anything legal on the bulletin boards.
I hold that pornography is perfectly legal for adults.
What do you say?
A: The First Amendment does protect the distribution of sexual materials that are not considered legally “obscene.” Whether or not an item is obscene is defined by state law. But at a minimum, material cannot be obscene unless
- When judged as a whole in accordance with contemporary community standards appeals to a prurient interest in sex;
- when judged as a whole according to contemporary community standards depicts in a patently offensive manner sexual or excretory activities specifically defined by state law (that is the specific sexual or excretory activities which if graphically depicted could be considered obscene), and
- lacks serious literary, artistic, political or scientific value. Miller v. California.
That being said, there are several conditions under which the the dissemination of non-obscene sexual materials may nevertheless be restricted.
First, the First Amendment restricts only the acts of government. Thus if the senior center is a private facility, and not run by the government, the senior center would be free to adopt its own policies.
Second, it may well make a difference whether the senior center, if a governmental entity, is restricting what the seniors can disseminate among themselves or merely has a policy of not carrying sexual, but non-obscene materials in its library, for example. it is unlikely that the center has an affirmative constitutional duty to carry certain materials. And the bulletin board raises entirely different issues. The senior center will only be required to permit individuals to post sexual, but non-obscene materials, on the bulletin board, if that bulletin has been designate as a public forum for the indiscriminate use by the public for the posting of information.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.