Obscenity

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Obscenity is a legal term that refers to anything that offends a person’s morals. This may be doing something that is indecent, lewd, or obscene. Obscenity is commonly used in reference to pornography, though it pertains to much more. The courts have found determining just what qualifies as obscenity, as it is subject to each individual person’s moral values. The term often applies to erotic content in books, magazines, and films, as well as nude dancing. To explore this concept, consider the following obscenity definition.

Definition of Obscenity

Noun

  1. A state or quality of being shocking to a person’s sense of what is decent or moral
  2. An utterance, act, or object that is obscene
  3. An offensive work, behavior, language, or image

Origin

1600-1610        French obscénité

History of United States Obscenity Laws

Since the early 19th century, American laws have prohibited the sale and distribution of obscene materials. In 1873, obscenity laws were adopted on the federal level due in part to the efforts of Anthony Comstock. Comstock was a United States Postal Inspector and politician responsible for the passing of the Comstock Act, which made it a criminal offense to distribute obscene materials through the mail.

After the passing of the Comstock Act, Comstock was appointed as the postal inspector in order to enforce the law. Within a short time, 24 states had passed laws prohibiting materials from being distributed within the states. However, the laws did not define what constituted obscene materials, and the courts were left to decide that critical issues on a case-by-case basis.

In the 20th Century, the Supreme Court began hearing more cases involving obscenity, as mass communications and media became a mainstay in the country. As the issue grew in importance, the Supreme Court addressed the issue of whether obscene materials were covered by the First Amendment right to free speech. While the Court quickly established that obscene materials are not protected by the First Amendment, the problem of defining obscenity remained.

In the 1957 case of Roth v. United States, 354 U.S. 476 (1957), the U.S. Supreme Court ruled that “Obscenity is not within the area of the constitutionally protected freedom of speech or press…” Justice William J. Brennan, Jr., author of the Court’s decision in this matter further stated “… it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance” or form of expression that man may make.

The test to determine whether something is obscene, according to the Court, is “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient [indecent, lustful, or lascivious] interest.”

The issue of defining obscenity did not stand alone, but was accompanied by a question of due process. The Court further addressed this issue, holding that, in using this standard of judging obscenity, there is no violation of “the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt.”

As society’s moral values shifted through the years, the Supreme Court’s test for determining what is obscene remained valid, as it takes into account “contemporary community standards,” in all future determinations. In 1973, the issue of what is considered obscenity, and therefore banned from being transmitted through the U.S. mail, was again questioned, and brought before the U.S. Supreme Court.

Redefinition of Obscenity

In 1973, the Supreme Court once again reviewed the issue of defining obscenity in Miller vs. California. Similar to the Roth case, Miller pertains to the mailing out of printed materials of a graphic sexual nature. Much argument was heard about the nature of obscene materials, and a test that would provide guidance for the government, while allowing greater flexibility for states and prosecutors, was sought.

The Court conceded that there are “inherent dangers of undertaking to regulate any form of expression.” As a result, the Court abandoned the Roth test, in favor of a new test that provides three specific elements that must be met for an item or act to be subject to regulation by state laws.

Known as the “Miller test,” the three elements that define obscenity include:

  1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
  2. Whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law; and
  3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Obscenity in Public Places

While the question of what the average person considers obscene changes with the times, Congress addressed the issue of obscenity in public places. This includes government and other public funded buildings or locations. The public forum doctrine recognizes that individuals within the U.S. have the right to display their works in public places, such as parks and public buildings, while requiring that those individuals and their works abide by general decency standards. Once again, this concept is broad, as it spans the “diverse beliefs and value of the American public.”

The primary issue in addressing obscenity in public places is the display of works an artist is passionate about, which are considered by others to be “inappropriate for children,” or which are seen as a form of sexual harassment. If challenged on such a basis, the artwork is likely to be removed, though many of these public entities maintain a “no nudity” policy to avoid the problem.

Obscenity Involving Minors

Federal law specifies that obscenity involving minors is illegal, and individuals convicted of this crime face penalties that are more harsh than they would face if the offense involved only adults. Title 18 of the United States Code (“U.S.C.”) makes it illegal for any person to deliberately or knowingly send obscene materials through the mail, or by any form of interstate or foreign commerce to a minor under the age of 16. This law also prohibits anyone from receiving, possessing, distributing, or producing cartoons, drawings, paintings, or other visual representations of minors engaged in sexual acts.

This federal law specifies a test for obscenity involving minors that involves stricter boundaries. Any image or other representation involving minors may be considered obscene if it shows, or appears to show, a minor engaged in certain graphic sexual situations, or if the image “lacks serious literary, artistic, political, or scientific value.” A person convicted for the first time for this crime faces a minimum of 5 years, and up to 20 years in prison.

Internet Obscenity and Minors

Additional sections of Title 18 attempt to protect children from being exposed to obscene or harmful material while online. These laws make it illegal to use internet domain names that are misleading, with the intent of deceiving a child to viewing the site. In additional to typical penalties for obscenity, a person convicted of obscenity involving minors may be required to register as a sex offender on the sex offender registry.

Example of Obscenity Involving a Minor

John possess several pornography magazines. Simply possessing the magazines is not a crime. However, John shares those magazines with the neighbor’s 14-year old son and his friends. This act is clearly against the law, and in many states it may be charged as either a misdemeanor or a felony, depending on the exact circumstances.

In this example of obscenity involving a minor, there is a good chance John would be convicted of a felony offense. In addition to any probation or prison time he may receive, he would be required to register as a sex offender for the rest of his life.

Penalties for Obscenity Crimes

When all three elements of the Miller test are met, to show that a state or federal obscenity law has been violated, the perpetrator may be charged with a crime. Because these crimes vary greatly in nature, penalties for obscenity crimes also vary. An individual sending obscene materials through the mail or over the Internet, or producing it with the intent to distribute it, faces imprisonment of five or more years in prison. Other penalties for obscenity include fines and community services.

When children are involved in any way, the penalties for obscenity crimes are more severe. A person convicted of child pornography charges can face up to 10 or more years in prison.

The Supreme Court on Regulation of Obscenity

In the early 1980s, Paul Ferber owned an adult bookstore in Manhattan. After selling two films containing young boys engaged in sexual acts to an undercover police officer, Ferber was charged under the New York’s obscenity law. The state’s law made it illegal for any person to promote or sell any item that contained sexual conduct to minors under the age of 16. Ferber was charged with promoting obscene sexual performances, and promoting indecent sexual performances.

At trial, Ferber was convicted of promoting indecent sexual performance, and acquitted of the obscene sexual performance charge. After a round of appeals, the New York Supreme Court overturned Ferber’s conviction, calling the state’s obscenity law unconstitutional.

The state appealed the matter to the U.S. Supreme Court, which ruled that the state’s law did not violate the First Amendment, reversing and remanding the case to the trial court. In its ruling on the Ferber case, the Court reinforced previous rulings that the First Amendment allows for regulation of obscenity, as well as restating a finding that a material is “obscene” if, when considered as a whole, while applying modern community standards, it:

  1. Lacks serious scientific, literary, artistic, or political value
  2. Is “patently offensive”
  3. Is aimed at “prurient interests” (carnal, salacious, or indecent interests)

In addition, the Court ruled that obscenity involving children, or child pornography, could be banned, even without applying the Miller test. This is because

  1. The government has a responsibility to protect children from actions that are harmful to their “physiological, emotional, and mental health.”
  2. The Miller test does not address the serious issue of child pornography and exploitation.
  3. The advertising and selling of child pornography, which is illegal throughout the U.S., is motivated by financial gain.
  4. The legitimate artistic value of allowing live performances, and photographic representation of children engaged in obscene or sexual acts is negligible.
  5. Classifying child pornography as being outside First Amendment protections is in line with the Court’s prior decisions as to what “speech” or other expression is unprotected.

Related Legal Terms and Issues

  • Appellate Court – A court having jurisdiction to review decisions of a trial-level or other lower court.
  • Criminal Act – An act committed by an individual that is in violation of the law, or that poses a threat to the public.
  • Criminal Charge – A formal accusation by a prosecuting authority that an individual has committed a crime.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Felony – A crime, often involving violence, regarded as more serious than a misdemeanor. Felony crimes are usually punishable by imprisonment more than one year.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Misdemeanor – A criminal offense less serious than a felony.
  • Sex Offender – A person convicted of a crime involving sex, including rape, molestation, and production or distribution of child pornography.
  • Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.