Q: I draw, from my imagination, pornographic scenes that I sometimes distribute to consenting adults. I have been convicted for possessing pornography for having these drawings. Is my conviction legal?
A: Visual arts and entertainment constitute protected forms of expression under the First Amendment. See White v. City of Sparks, 500 F.3d 953 (9th Cir. 2007); Ward v. Rock Against Racism, 491 U.S. 781,790 (1989). However, there are limits to the First Amendment, and distributing obscene material does not fall within its protections. Miller v. California, 413 U.S. 15, 24, 93 S. Ct. 2607, 2615, 37 L. Ed. 2d 419 (1973).
In deciding whether an obscenity law permissibly regulates work depicting sexual conduct, courts use the following basic guidelines: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Id. at 24 (internal citations omitted).
Unfortunately, an analysis of whether your artwork is protected by the First Amendment would be highly fact-specific and beyond the scope of what we can offer through this service.
Bryan Cave Leighton Paisner 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. No attorney-client relationship has been formed by way of this response.