Offensive expression is often protected, but the Supreme Court recognises narrow categories of speech the government may regulate. Understanding obscenity doctrine shows how courts balance free expression, public morality, and governmental interests.

Obscenity vs. Offensive Speech: The Core Distinction

The First Amendment strongly protects speech, including unpopular or shocking ideas. However, not all expression receives the same constitutional protection.

By contrast, offensive speech (including vulgarity, profanity, or hateful messages) is usually protected unless it falls into a separate unprotected category.

Why the distinction matters

• If speech is labelled obscene, government may ban or punish it more broadly.

• If speech is merely offensive, government generally must tolerate it, even if most people disapprove.

The Miller Test and “Community Standards”

The Court’s modern obscenity framework comes from Miller v. California (1973).

Miller attempted to make obscenity determinations more concrete while still reflecting local values.

The Miller test (three-part standard)

Material may be deemed obscene if:

• Prurient interest: An average person, applying contemporary community standards, would find the work appeals to a shameful or morbid interest in sex.

• Patently offensive: The work depicts or describes sexual conduct in a clearly offensive way as defined by state law.

• Lacks serious value: Taken as a whole, the work lacks serious literary, artistic, political, or scientific value (often abbreviated as SLAPS).

The role of “community standards”

“Community standards” allow variation by locality, which can:

• Expand regulation in more conservative areas

• Narrow regulation in more permissive areas

At the same time, the “serious value” prong limits purely local majoritarian censorship by requiring a broader judgement about value.

What Counts as Protected “Offensive” Speech

The Court has often emphasised that the First Amendment protects expression precisely because it can offend.

Key principle: government cannot ban speech just for being offensive

• Cohen v. California (1971) protected a jacket bearing “F--- the Draft” in a courthouse corridor, reinforcing that vulgarity and profanity are generally protected absent a specific, legally valid reason to regulate.

Photograph used in a retrospective discussion of Cohen v. California (1971), the Supreme Court case involving a jacket displaying an anti-draft profane slogan in a courthouse corridor. This image anchors the doctrinal takeaway that offensiveness alone is not a sufficient basis for censorship when the expression does not fit another unprotected category (such as true threats or fighting words). Source

• The government may promote civility through persuasion, but broad bans on offensive ideas are typically unconstitutional.

Hate speech is usually treated as protected speech

In U.S. doctrine, “hate speech” as a category is not automatically excluded from protection; regulation must be tied to another constitutionally recognised exception (for example, true threats or targeted harassment under specific legal standards). In AP terms, offensiveness alone is not enough.

Government Interests and Practical Limits

Even when regulation is permitted, the Court expects governments to avoid overly broad restrictions that chill lawful speech.

Common governmental justifications in this area

• Protecting minors (especially regarding sexually explicit material)

• Preserving public morality (limited by First Amendment doctrine)

• Maintaining public order (cannot be a pretext for viewpoint censorship)

Narrow tailoring and overbreadth concerns

Courts scrutinise whether laws sweep too widely and suppress protected speech along with unprotected obscenity. This reflects the ongoing effort to weigh free expression against community standards and public interests without allowing majorities to silence unpopular expression.