Speech About Sexuality

Can the government stop AIDS prevention programs on the ground that they are too sexually explicit?The government cannot prohibit the production or distribution of AIDS materials unless they are found to be obscene within the meaning of the law. However, eligibility for funding is a different question. Federal, state, and local agencies have varying rules for funding, based on the content of AIDS prevention programs. Current federal restrictions prohibit funding for materials that might be considered ''offensive" to persons outside the target audience; these restrictions are under challenge in federal court. 43 State and local agencies may be more or less strict than the federal rule. Private donations and other funds from nongovernment sources, however, are not subject to these rules.

What is the legal definition of "obscenity"?

The Supreme Court has interpreted the First Amendment so that its protection of expression does not cover materials that meet the definition of obscenity. There is a three-part test for what constitutes obscenity. To be found obscene, material must run afoul of all three parts of the test: First, that to an average person applying contemporary community standards, the material taken as a whole appeals to the prurient interest; second, that the material depicts or describes in a patently offensive way certain sexual conduct as specified by state law; and, third, that the material, taken as a whole, lacks serious literary, artistic, political, or scientific value.44

Because this test is an interpretation of the federal Constitution, state courts are required to recognize at least that much protection for speech, but they also may interpret their state constitutions to provide more protection. In Oregon, the state supreme court has ruled that the state constitution protects sexually explicit speech to the same degree as other categories of speech and has declared that there is no obscenity exception to the free speech guarantee under that state's constitutions.45

Are sexually explicit lesbian and gay books and films obscene?

Unless all three prongs of the test for obscenity are met, a text or image cannot be found obscene. Any material found to have serious literary, artistic, political, or scientific value, therefore, by definition cannot be adjudged obscene. An exhibition of photographs by Robert Mapplethorpe, some of which were homoerotic, formed the basis for an obscenity prosecution in Cincinnati in 1990, but the jury acquitted the defendants (the museum that sponsored the exhibit and its director) of the charge of obscenity because of the artistic value of the work. The simple fact that materials are homoerotic is not sufficient grounds for a legal determination that they are obscene.