205 (1975) (protecting publicly visible nonobscene
nudity); Cohen v.
commercial speech and nonobscene
, sexually explicit speech are regarded
(83) Similarly, when Congress amended the Communications Act to ban nonobscene
but sexually explicit "dial-a-porn" services, (84) it could not have avoided knowing that the statute was plainly unconstitutional, as became clear with the unanimous Supreme Court decision in Sable Communications of California, Inc.
Ulysses (365) was judicially declared to be nonobscene
under the Tariff
41, 50 (1986) (applying intermediate scrutiny to a restriction on nonobscene
American Civil Liberties Union, Breyer required "the Government to show that any restriction of nonobscene
expression is 'narrowly drawn' to further a 'compelling interest' and that the restriction amounts to the 'least restrictive means' available to further that interest." (772) As with Brown and Playboy Entertainment, however, Breyer determined that the government met these burdens, and voted to uphold the statute in question.
(255) The second reasonable conclusion that we can reach when interposing the two cases, therefore, is that, in the Court's view, the gay magazine's content had sufficient social value to render it nonobscene
sexually explicit magazines but denied minors the
413, 455 (1966) (Harlan, J., dissenting) ("Two Justices believe that the First and Fourteenth Amendments absolutely protect obscene and nonobscene
By implication, nonobscene
sexually explicit material is presumed protected speech.
In contrast, in concurring opinions, two Justices held that the First Amendment protects all speech--both obscene and nonobscene