The question of whether obscenity is protected by the First Amendment has troubled the Supreme Court in the past half century. In the decision of Roth v. United States, Samuel Roth was convicted of violating the law by mailing obscene books and pamphlets. The Court's ruling defined obscenity as that which has no redeeming social value. The decision written by Justice Brennan stated: “the test as to whether materials are obscene should be whether the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

In the 1973 case of Miller v. California, the Supreme Court ruled that an individual state could outlaw material based on local standards. This was clearly ambiguous and resulted in a great deal of additional litigation. In 1987, the Court ruled in an Illinois case that the standards must be national.