Office of General Counsel

Distribution of Sexually Explicit Publications on Campus

From time to time, ASU receives complaints about "adult" publications distributed on campus. Often the complaints arise from sexually suggestive photographs on the covers of these publications. Some students, employees and visitors to campus have told us that they find the publications and the photographs offensive and inappropriate in an educational environment. Others have expressed concern that children on campus for various programs are also being exposed to these publications. The purpose of this briefing paper is to explain the applicable law regarding the distribution of sexually explicit publications on campus and to identify campus resources for individuals who may have concerns about this material. The final section of this paper also identifies additional campus resources for addressing speech issues.

 

Legal Issues

Campus Resources

 

Legal Issues

The First Amendment to the U.S. Constitution protects the press from governmental interference. It prohibits government action "abridging the freedom of speech." Courts have interpreted this to mean that governmental entities cannot restrict or prohibit the content of speech, except in very limited circumstances. Obscene speech is not constitutionally protected and can be restricted. Even if the content of speech is otherwise "legal," a governmental entity can impose reasonable time, place and manner restrictions on it.

The Arizona Constitution provides even broader protection to the press. It provides that "every person may freely speak, write, and publish on all subjects, being responsible for abuse of that right."

As an entity of the state, ASU is constitutionally limited in its ability to restrict legal publications on the basis of content. ASU can prohibit the distribution of obscene material on campus. Many of the offensive publications distributed on campus, however, do not fall within the legal definition of obscenity.

For an item to be "obscene" under A.R.S. §13-3501, it must meet all three of the following conditions:

  1. The average person, applying contemporary state standards, would find that the item, taken as a whole, appeals to the prurient interest...; and
  2. The average person, applying contemporary state standards, would find that the item depicts or describes, in a patently offensive way, sexual activity...; and
  3. The item, taken as a whole, lacks serious literary, artistic, political or scientific value.

If material distributed on campus is believed to be obscene, it may be reported to the ASU Police for possible prosecution by the Maricopa County Attorney. The person filing the complaint should refer to the applicable statute (A.R.S. §13-3505), which would allow the court to order that the distributor stop continued distribution of the material. The County Attorney has discretion regarding the claim and will first evaluate whether the material meets the statutory definition. The County Attorney may not pursue the complaint if success seems unlikely or if the distributor agrees to stop.

If "adult" material is not within the statutory definition of obscene, Arizona law may permit some regulation, particularly if the material is distributed in a way that is harmful to minors or that would permit access or viewing by minors. A.R.S. §13-3507 and A.R.S. §13-3513 may apply to some sexually suggestive publications distributed in newsracks.

Campus Resources

Whether or not material satisfies a legal definition of obscenity, it may be offensive to some and may make some members of the campus community feel uncomfortable or unwelcome. The Campus Environment Team and the Intergroup Relations Center provide opportunities to discuss issues relating to campus climate and promote diversity and awareness. The Web sites for each of these organizations contain a wide variety of useful information and provide links to many other organizations and resources across campus.

The Office of Equity and Inclusion is the office charged with evaluating claims of discrimination on campus and is an excellent resource for students and employees. For matters that may violate criminal law, ASU Police can provide information and assistance. The Office of General Counsel is available to answer questions about this briefing paper or related legal issues.


Some of the legal material found at this site has been abridged from laws, regulations, court decisions, administrative rulings, ABOR and ASU policies and other sources. Further details may be necessary for complete analysis and understanding in particular matters. The information contained at this site, and related links, is not a substitute for professional legal counsel. Any discrepancy between the information at this site and ASU policy is not intended to alter or amend official ASU policy or procedure.

Any links to non-Arizona State University information are provided as a courtesy. They are not intended to nor do they constitute an endorsement by the Arizona Board of Regents or Arizona State University of the linked materials.