State of the Law on Pornography

By Clifton Drake
Aug 4, 2009

When it comes to the word “pornography,” many Christians would assume it’s synonymous with “obscenity,” and indeed in the biblical worldview, it is. The law, however, takes a different view. Although obscenity is not protected by the First Amendment, pornography is not necessarily considered obscene under the law and therefore is often protected as free speech. For something to be considered obscene, three factors must be shown:
1. An average person in the local community would think that the work as a whole appeals to the prurient interest (a shameful or morbid interest in nudity, sex, or excretion)
2. The work shows or describes specific sexual conduct listed in state laws in a patently offensive way
3. The work lacks serious literary, artistic, political, or scientific value (known by some as the SLAPS test)

If it can be shown that certain pornographic material (even movies shown in adult theaters) meets these factors, laws can regulate it and prohibit its distribution. If not, it’s protected as free speech.

Confused? You aren’t alone; the legal line between pornography and obscenity is often unclear. The local community standard is also troublesome. Under this standard, what’s obscene in one part of the country can be entirely different from what’s considered obscene in Las Vegas, for example.

Child pornography is a different category entirely:
• It is forbidden by both federal and state law and not protected by the First Amendment.
• Although private possession of obscene material is allowed legally (remember, it’s only illegal to distribute it), private possession and viewing of child pornography is illegal.
• Even when no actual minor is involved, if the person distributing the pornography claims that minors are shown, it becomes illegal.

Incredibly, computer-generated “virtual” child pornography that doesn’t involve actual human minors is not illegal, so long as it is offered and sought as virtual child porn and not real child porn.

Punishment for child pornography varies; some states have harsher punishments than federal law, while others do not. Here are examples of punishments under federal law:
• Production of child pornography: mandatory min. 15 years, max. 30 years
• Distribution or receipt of child pornography: mandatory min. 5 years, max. 20 years
• Possession of child pornography: up to 10 years

Pornography is an affair of the heart and mind—“anyone who looks at a woman lustfully has already committed adultery with her in his heart” (Matthew 5:28). Viewing pornography causes an addiction to a substitute and destroys relationships, and the Bible repeatedly commands that we must not have “even a hint of sexual immorality” (Ephesians 5:3). Our laws mostly live up to that ideal with respect to child pornography, but even here they are poorly enforced and still inadequate.

Without a new interpretation of the First Amendment by the Supreme Court, some pornography will remain legal if it’s not “obscene.” In the meantime, encourage your elected representative and senators to take a strong stand in support of legislation opposing pornography and obscenity. While courts sometimes overturn such laws passed by Congress, we must encourage our elected officials to keep up the fight. Because the definition of obscenity involves local community standards, juries have great influence in deciding what is obscene, so alert your communities to the dangers of pornography, and write letters to the editor encouraging the strict prosecution of those breaking the law. Finally, teach your children about God’s standard of purity; “sexting” (sending text messages of nude pictures) has exploded among teenagers, and it often starts in middle school. Children must understand the dangers of pornography as well as the legal consequences—sexting can land both sender and recipient in jail or on a sex offender registry. We must take pornography seriously; God’s Word is not silent on this matter, and we must not be either.

Further Learning

Learn more about: Family, Sexual Purity, Pornography,

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