Pornography is generally considered protected speech under the First Amendment of the United States Constitution. However, notable limitations apply.
Obscenity Laws (18 U.S.C. §§ 1460-1470)
Source: Citizen’s Guide to U.S. Federal Law on Obscenity
The U.S. Supreme Court established a test that judges and juries use to determine whether matter is obscene in three major cases: Miller v. California, 413 U.S. 15, 24-25 (1973); Smith v. United States, 431 U.S. 291, 300-02, 309 (1977); and Pope v. Illinois, 481 U.S. 497, 500-01 (1987). The Miller test has three criteria:
- Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);
- Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and
- Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Any material that satisfies this three-pronged test may be found obscene.
Content Involving Minors (18 U.S.C. §§ 2251-2260)
Source: Citizen’s Guide to U.S. Federal Law on Child Pornography
Materials depicting or involving minors (under the age of 18) is expressly illegal. This includes, but is not limited to:
- Producing visual depictions of minors in sexual activity
- Distributing or receiving content involving minors
- Possessing or viewing content involving minors
- Encouraging or inducing a minor to engage in sexual activity for the purpose of producing such material
- Computer/AI generated or “morphed” images that appear to show minors in sexual conduct
Penalties are severe and commonly result in lengthy prison sentences.
Import and Distribution
There are laws regulating the importation and distribution of obscene material. However, these are rarely enforced for pornography unless it clearly meets the Miller Test. These include:
- Mailing Obscene Material (18 U.S.C. §§ 1461, §§ 1462, §§ 1463)
- Importation of Immoral Articles (19 U.S.C. § 1305)
Revenge Porn
There is no federal legislation which expressly prohibits revenge porn or other nonconsensual images. Various pieces of legislation have been proposed, but no laws have been passed. However, depending on circumstances and legal interpretations, some federal statutes may apply.
- Stalking Laws (18 U.S.C. § 2261A)
- Interstate Threats (18 U.S.C. § 875)
- Computer Fraud and Abuse (18 U.S.C. § 1030)
- Extortion Laws
- Extortion through Interstate Communications (18 U.S.C. § 875(d))
- Blackmail (18 U.S.C. § 873)
- Interception of Communications (18 U.S.C. § 2511 & § 2512)
Revenge porn is commonly regulated by state laws.