Geoffrey R. Stone on "The Constitution's Complicated Relationship With Sex and Obscenity"
At the time our Constitution was adopted, there were no laws in the United States against obscenity. Sexually explicit expression was widely available. It was only in the nineteenth century that religious moralists, such as Anthony Comstock, instituted laws prohibiting the distribution of “obscene” materials.
After a century of censorship, though, the legal concept of “obscenity” has largely evaporated in recent decades because of the impact of technology, most notably the Internet. Today, prosecutions for the sale, distribution, or exhibition of obscenity have virtually disappeared.
But even if consenting adults now have ready access to all sorts of sexually explicit material, the question remains whether government can constitutionally shield minors and unconsenting adults from exposure to such material.