Top 10 List Points to Rulings That Help Preserve Sexual Liberties

Dec 24, 2012 11:45 AM PST

PHILADELPHIA — Adult entertainment journalist Alex Henderson has come up with a Top 10 list of landmark U.S. court rulings that have preserved fundamental sexual freedoms and prevent the right from others controlling your sex life.

Henderson, who contributes frequently to XBIZ World, noted in a piece posted on Salon.com that "if the Christian Right had its way, the U.S. would be a fundamentalist theocracy in which contraception, homosexuality, abortion, sexually explicit hip-hop lyrics and all adult pornography were illegal."

"But making the U.S. that much of a theocracy would mean overturning a lot of major Supreme Court decisions," he says in the piece, which originally appeared on AlterNet.

Henderson emphasized 10 landmark decisions that have had major implications for sexual freedom in the U.S., including:

1. Stanley v. Georgia (1969): The ruling upheld that selling, creating or distributing obscene adult material was illegal, but a consumer could not be charged with obscenity merely for being in possession of that material.

2. Roe vs. Wade (1973): The decision declared most of the state abortion laws that existed at the time to be unconstitutional.

3. Regina vs. Hicklin (1868): A British case rather than a U.S. case, it had a profound influence on American obscenity law. The case involved the distribution of copies of an anti-Catholic pamphlet titled “The Confessional Unmasked.” The Court of Queen’s bench ruled that even if a small portion of a book or pamphlet had a “tendency to deprave and corrupt,” all of it was obscene.

4. Roth vs. the U.S. (1957): No less than 144 years after Regina vs. Hicklin, U.S. law continues to state that obscenity is not protected by the First Amendment. But what has changed dramatically since then is the way obscenity is defined. In 1957, the Supreme Court under Chief Justice Earl Warren redefined obscenity in a major way with its landmark ruling in Roth vs. the U.S. The Roth decision threw out the Hicklin standard and said that an artistic or literary work could not be obscene because of a small or isolated passage; the intent of the entire work had to be considered.  

5. Miller vs. California  (1973): The Miller test was born by applying standards for  media, which makes it obscene if it 1) appeals to a prurient interest when contemporary community standards are applied; 2) is patently offensive; and 3) lacks serious literary, artistic, political or scientific value when taken as a whole. The ruling continues to be the standard for determining obscenity in the U.S.

6. Griswold vs. Connecticut (1965) and Eisenstadt vs. Baird (1972): Griswold vs. Connecticut struck down a state law that forbade the use of contraceptives for married couples; Eisenstadt vs. Baird  expanded the statute to unmarried couples.

7. Lawrence vs. Texas (2003): The U.S. Supreme Court handed down a ruling declaring a Texas sodomy law to be unconstitutional and in effect invalidated sodomy laws in 13 other states. 

8. Reno vs. American Civil Liberties Union (1997): The Communications Decency Act of 1996 made it a crime to knowingly transmit “obscene or indecent” images to anyone under 18; using some of the language of the Miller test, the CDA made it a crime to send minors material that “depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” But when the American Civil Liberties Union challenged the CDA, the U.S. Supreme Court struck down anti-indecency elements of the CDA on the grounds that they violated the First Amendment.  

9. Ashcroft vs. Free Speech Coalition (2002): The Free Speech Coalition challenged parts of the Child Pornography Prevention Act — and they were struck down at the U.S. Supreme Court in 2002. The Supreme Court upheld the illegality of actual child pornography but pointed out that countless mainstream Hollywood films have had stories depicting sexual situations among teenagers, including American Beauty and Traffic. The FSC applauded the High Court’s decision, asserting that government’s prosecutorial efforts should be focused on real child pornography instead of “virtual child pornography.”

10. Jack Thompson vs. the 2 Live Crew (1992): 2 Live Crew, a Miami-based rap group known for its sexually explicit lyrics, raunchy humor and song titles like “We Want Some Pussy,” “Head, Booty & Cock,” “The Fuck Shop,” “Me So Horny” and “S&M,” was found guilty for obscenity; some retailers were even arrested for selling it. But a court of appeals in Georgia overturned and asserted that "As Nasty As They Wanna Be" did not fit the Miller test for obscenity — and that decision was later upheld by the U.S. Supreme Court.

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