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A History of Censorship in Adult Entertainment.1

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A History of Censorship in Adult Entertainment
Explore the history of censorship in adult entertainment, from early legal battles and moral crusades to the impact of the internet on content regulation.

A Chronicle of Suppression and Control in Adult Media Production

To understand the current legal framework governing sexually explicit materials, begin by examining the 1973 Supreme Court case Miller v. California. This ruling established the three-prong “Miller test” for obscenity, which remains the primary legal standard in the United States. The test assesses whether a work, taken as a whole, appeals to the prurient interest, depicts sexual conduct in a patently offensive way as defined by state law, and lacks serious literary, artistic, political, or scientific value. Understanding these three specific prongs is foundational to comprehending why certain forms of expression are protected while others face legal challenges.

Before the Miller decision, the legal battles were defined by different standards. The 1868 British case Regina v. Hicklin introduced a test that judged material based on its potential to corrupt the most susceptible minds, a standard later adopted in the U.S. via the Comstock Act of 1873. This act criminalized the mailing of “obscene” or “lewd” materials, leading to the suppression of everything from medical texts to classic literature. Film producers in the early 20th century attempted self-regulation with the Motion Picture Production Code, commonly known as the Hays Code, from 1934 to 1968. This code explicitly forbade depictions of “lustful kissing,” “suggestive postures,” and any positive portrayal of non-marital relationships, profoundly shaping the content of mainstream cinema for decades.

The shift from print and film to digital distribution created new battlegrounds over content regulation. The Communications Decency Act of 1996 (CDA) was an early attempt to regulate indecent material online, but key provisions were struck down by the Supreme Court in Reno v. ACLU (1997) as overly broad. More recently, the Fight Online Sex Trafficking Act (FOSTA) and Stop Enabling Sex Traffickers Act (SESTA) of 2018 amended Section 230 of the CDA. This change holds platforms liable for user-generated content that facilitates prostitution, leading many websites to preemptively remove vast amounts of legitimate, consensual erotic content to avoid legal risk.

How the Comstock Act of 1873 Shaped Early Erotic Media Distribution

The Comstock Act of 1873 directly criminalized the mailing of “obscene, lewd, or lascivious” materials, forcing distributors of risqué content into clandestine networks. This legislation, championed by Anthony Comstock and his New York Society for the Suppression of Vice, classified information regarding contraception and abortion alongside erotic literature and imagery as boobs porn non-mailable contraband. Violators faced severe penalties, including up to five years of hard labor and fines reaching $2,000, which equates to over $50,000 in contemporary value.

This federal statute effectively dismantled the burgeoning mail-order businesses for risqué photographs, French postcards, and provocative publications. Distributors adapted by relying on discreet, hand-to-hand transactions in urban centers or using private couriers, significantly increasing both risk and cost. The U.S. Postal Service became an enforcement arm, with postal inspectors actively searching for and confiscating suspect packages. Between 1873 and the early 1880s, Comstock himself claimed responsibility for the seizure of over 130,000 pounds of books and 194,000 pictures deemed indecent.

The law’s broad definition of “obscene” gave Comstock and his agents immense power to target not just explicit depictions but also medical texts and art reproductions. For example, anatomical charts and classic art prints were sometimes confiscated under the Act’s authority. This forced creators and publishers of provocative works to self-censor, often using ambiguous language and suggestive rather than explicit visuals to avoid prosecution. The primary distribution method shifted from a national mail-based model to localized, underground sales, concentrating the trade in port cities and metropolitan areas where anonymity was greater and enforcement could be more easily evaded.

Analyzing the Miller v. California Case and Its Three-Prong Test for Obscenity

To determine if material depicting sexual conduct is obscene and thus unprotected by the First Amendment, apply the three-pronged Miller Test. All three conditions must be met for a work to be legally classified as obscene. The first prong asks whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest. This standard is local, not national, meaning what is acceptable in Las Vegas might be deemed obscene in a rural community. The focus is on the material’s dominant theme and its capacity to incite shameful or morbid interest in nudity or sex.

The second prong requires a specific examination of whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. The Supreme Court provided examples such as “patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated” and “patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” State statutes must explicitly define what conduct is forbidden. Without a clear state law, a prosecution under this prong fails.

The final prong assesses whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. This is the “SLAPS” test. Unlike the first prong’s community standard, this evaluation uses a national standard. A reasonable person, not a local jury, must determine if the material possesses any of these serious values. Expert testimony is often used to establish or refute the presence of such value. If a work has even a minimal amount of serious artistic merit or political commentary, it cannot be deemed obscene under this prong, regardless of how offensive it may be to some.

Tracing the Impact of the Communications Decency Act on Internet-Based Content Platforms

Implement robust, age-verification systems that utilize multi-factor authentication to comply with the legal precedents established following the Communications Decency Act (CDA) of 1996. The CDA’s initial attempt to regulate “indecent” or “patently offensive” material for minors was struck down as unconstitutional by the Supreme Court in Reno v. ACLU (1997). The court’s decision affirmed that broad, content-based restrictions on online speech violated the First Amendment, setting a foundational principle for internet freedom. This ruling forced platforms distributing materials for mature audiences to develop self-regulatory mechanisms rather than rely on government-imposed filters.

The most enduring component of the CDA is Section 230, which provides legal immunity to internet service providers and platform operators for content created by third-party users. This provision directly fostered the growth of user-generated content platforms, from early forums to modern social media and video-sharing sites. Without Section 230’s “safe harbor,” platforms would face crippling liability for user-submitted materials, making the business models of companies like OnlyFans, Patreon, or Reddit’s NSFW communities untenable. They would be forced to pre-screen every piece of content, a logistically and financially impossible task.

Following the Reno v. ACLU decision, the industry pivoted towards technological solutions. The “labeling and filtering” approach, suggested by the court as a less restrictive alternative, led to the development of content rating systems like the Internet Content Rating Association (ICRA) and later, platform-specific tags and filters. For creators of provocative works, correctly labeling their material became a primary defense against accusations of distributing it to minors. Failure to do so could invite scrutiny under other statutes, such as the Child Online Protection Act (COPA) of 1998, though COPA was also ultimately found unconstitutional.

Section 230’s protections are not absolute. The Fight Online Sex Trafficking Act (FOSTA) and Stop Enabling Sex Traffickers Act (SESTA), passed in 2018, amended the CDA. These laws created a specific carve-out, holding platforms liable for user-generated content that knowingly facilitates sex trafficking. This legislative change had a direct and immediate effect. Craigslist shut down its personals section. Reddit banned numerous communities. Many platforms that host expressive, intimate content implemented stricter moderation policies and automated scanning tools to detect and remove any material that could be interpreted as promoting illegal activities. This demonstrates a clear cause-and-effect: legislative adjustments to Section 230 directly compel platforms to modify their content moderation strategies and terms of service, often leading to more restrictive environments for creators of erotica and other intimate works.

For modern content platforms, the legacy of the CDA is a dual-edged sword. Section 230 enables their existence by shielding them from overwhelming liability for user posts. Conversely, the failed attempts within the CDA to directly regulate content established a clear legal expectation: platforms must take reasonable steps to prevent minors from accessing age-restricted material. This has resulted in a permanent operational requirement for robust age-gating, clear content labeling, and responsive takedown procedures for prohibited content, shaping the architecture of the internet for creators and consumers of materials intended for a mature viewership.