Obscenity and Indecency
Indecency and obscenity are often intertwined in the public's eye, especially in discussions about whether the government should impose prior restraint. But from a First Amendment perspective, they are much different. Quite simply, indecency has constitutional protection, but obscenity cannot hide behind the shield of the First Amendment. The majority of cases concerning sexually oriented commercial speech involve indecency rather than obscenity. One reason for this may be that, except for those directly promoting sexually explicit movies, videos, magazines, and books, most ads and public relations materials avoid pornographic references out of fear of offending the targeted audience or drawing the wrath of law enforcement officials. A second reason may he in the lesser protection accorded commercial speech under the U.S. Constitution, as dictated by the Supreme Court of the United States in a long line of commercial speech cases leading to Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 1 discussed at length in previous chapters in this book. Finally, the disparity may reflect the reality that, contrary to popular myth, sex--particularly hardcore sex--does not necessarily sell. This does not mean, however, that sex appeal and sexual innuendo are verboten. Indeed, it is difficult to escape the blatant appeals to sex in ads for products from autos to zippers that pervade the mass media. Nevertheless, most advertisers and public relations professionals meticulously eschew crossing the line from indecency to obscenity.
Both obscenity and indecency often invite official condemnation, usually in the form of prior restraint or prosecution, but only indecency can actually claim First Amendment protection, according to the Supreme Court of the United