Rights of publicity for the actorsQuestion: Is sexually explicit Fan Fiction protected by the First Amendment right to free speech?
Yes. However, sexually explict materials receive different levels of First Amendment protection. For example, child pornography and obscenity are not protected by the First Amendment. In Miller v. California (1973), the Supreme Court, in a 5-to-4 vote, ruled that material could be banned as obscene if it met a three-part test: 1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; 2. The work depicts, in a patently offensive way, sexual conduct specifically defined by the applicable state law; 3. The work, taken as a whole, lacks serious literary, artistic, political or scientific value. Material that meets all three parts is obscene and outside of First Amendment protection. Under the decision, only “ultimate sexual acts” could be forbidden, and relevant community standards were local, not nationwide. Non-obscene pornography, indecent and other “adult” materials do receive some level of First Amen
