Whether a still image of an erect penis portrays the kind of 'patently offensive,' 'hard core sexual conduct' that qualifies as constitutionally unprotected obscenity

QUESTION PRESENTED Speech that is sexually explicit, but not “obscene,” enjoys First Amendment protection. To qualify as obscene, a particular material must, inter alia, depict or describe “hard core sexual conduct” in a way that an average adult, applying contemporary community standards, would deem “patently offensive.” Every day, tens of thousands of Americans use their cell phones and personal computers to create, store, and exchange digital images prominently depicting their genitalia. The practice of sending these images is ubiquitous in modern dating and popular culture. But, like any form of expression, it is not without controversy. The practice has generated an enormous amount of counterspeech, stimulating a robust, ongoing public debate over such topics as what to do about nonconsensual transfers, and how to regulate transfers between teenagers. In this case, the Fifth Circuit held that a picture falling within the core of this class of images was properly classified as legally obscene under the standard described above. The question presented is: Whether a still image of an erect penis portrays the kind of “patently offensive,” “hard core sexual conduct” that qualifies as constitutionally unprotected obscenity. 1