One of the prongs of the Court’s obscenity test is that the speech must “appeal to the prurient interest” in order to be punishable as obscenity. (This requirement is not sufficient — two other prongs must be met — but it is necessary.) The Child Online Protection Act likewise required that the speech be designed to “appeal to the prurient interest” “with respect to minors.”
But what does “prurient” mean here? In Brockett v. Spokane Acardes (1985), the Supreme Court specifically rejected the argument that all material that “incites lasciviousness or lust” is prurient. Only material “whose predominate appeal is to ‘a shameful or morbid interest in nudity, sex, or excretion'” can be seen as appealing to the prurient interest, the Court held. “Material that, taken as a whole, does no more than arouse, ‘good, old fashioned, healthy’ [I kid you not -EV] interest in sex” remains constitutionally protected.
Justice Breyer’s dissent today in Ashcroft v. ACLU, though, seems to take a different view: “Insofar as material appeals to, or panders to, ‘the prurient interest,'” he concludes, “it simply seeks a sexual response.” Does this mean that Justice Breyer — and Chief Justice Rehnquist and Justice O’Connor, who joined his opinion — want to cut back on Brockett, even though then-Justice Rehnquist and Justice O’Connor joined Justice White’s majority opinion in that case? Or is this just a slip that flows from the use of terms of art such as “prurient interest,” which have a technical meaning that differs from what to most people is their intuitive meaning?
Note that Justice Breyer uses the “seeks a sexual response” definition of “appeals to the prurient interest” twice, as part of his core argument.
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