by Fred H. Cate

About the author: Fred H. Cate is a professor of law and director of the Information Law and Commerce Institute at the Indiana University School of Law— Bloomington.

Despite the extraordinary breadth of the First Amendment, the Supreme Court has found that the amendment's protection does not extend to the distribution or public exhibition of sexually explicit expression that is "obscene." In 1957 in Roth v. United States, the Court held that "obscenity is not within the area of constitutionally protected speech or press." Although the Court declined to provide a specific definition for "obscenity," its analysis focused on whether the average person, applying contemporary community standards, would find that the dominant theme of the material taken as a whole appealed to "prurient" interests.

Roth set off more than a decade of judicial confusion and indecision about the...