7.5 Obscenity
7 min read•august 20, 2024
Obscenity in criminal law deals with materials deemed highly offensive and lacking social value. The , established in 1973, provides a three-part standard for determining obscenity, considering , offensive depictions, and lack of serious value.
Obscenity is not protected by the , but regulating it raises concerns. Courts struggle to balance public morals with expression rights. Federal and state laws prohibit obscene material distribution, while local ordinances may restrict adult businesses through zoning.
Obscenity definition and standards
- Obscenity is a legal term that refers to materials or expressions that are considered highly offensive, sexually explicit, and lacking in social value
- Determining what qualifies as obscene has been a complex and evolving issue in criminal law, with courts struggling to balance free speech rights with of decency
Miller test for obscenity
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- Established by the Supreme Court in (1973) as a three-part test for determining whether material is obscene
- Considers whether the average person, applying , would find that the work appeals to the prurient interest
- Examines if the work depicts or describes sexual conduct in a way
- Assesses whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
Prurient interest requirement
- Prurient interest refers to a morbid, degrading, and unhealthy interest in sex or nudity
- Material must appeal to this prurient interest to be considered obscene under the Miller test
- Mere nudity or sexual content alone is not sufficient to meet this requirement (Jenkins v. Georgia)
Patently offensive material
- Patently offensive material is that which goes beyond the customary limits of candor in describing or representing sexual matters
- Offensiveness is determined by applying contemporary community standards, which can vary by location and change over time
- Examples of potentially patently offensive material include explicit depictions of sexual acts, lewd exhibition of genitals, or extreme violence in a sexual context
Socially redeeming value
- The Miller test requires that obscene material, taken as a whole, must lack serious literary, artistic, political, or scientific value
- This "saving clause" protects works that may contain offensive elements but still have some social importance or merit
- Examples of works with redeeming value despite controversial content include James Joyce's "Ulysses" and Robert Mapplethorpe's photography
Obscenity vs protected speech
- Obscenity is one of the few categories of speech that is not protected by the First Amendment's guarantee of free expression
- Courts have struggled to balance the government's interest in regulating obscene materials with the constitutional right to free speech
First Amendment considerations
- The First Amendment prohibits the government from restricting speech based on its content or viewpoint
- However, the Supreme Court has held that obscenity is not protected speech because it lacks social value and can be regulated to protect public morals ()
- Distinguishing between obscenity and protected sexual expression has been a challenging and sometimes subjective process for courts
Prior restraint on speech
- refers to government action that prohibits speech before it occurs, such as requiring advance approval for publications
- The First Amendment generally forbids prior restraints on speech, even for allegedly obscene materials (Near v. Minnesota)
- Exceptions may apply for extreme cases of national security or imminent lawless action, but prior restraints on obscenity are presumptively unconstitutional
Chilling effect concerns
- Regulating obscenity can have a on free speech by discouraging people from expressing themselves out of fear of prosecution
- Vague or overbroad obscenity laws may cause artists, writers, and publishers to self-censor and avoid controversial topics
- The threat of criminal charges or civil lawsuits can deter the production and distribution of materials that may have social value but risk being deemed obscene
Obscenity laws and regulations
- Obscenity is regulated at the federal, state, and local levels through a variety of criminal statutes and civil ordinances
- These laws aim to protect public morals, prevent the exploitation of minors, and regulate the distribution of sexually explicit materials
Federal obscenity statutes
- Federal law prohibits the interstate transportation, distribution, and sale of obscene materials (18 U.S.C. §§ 1461-1465)
- Penalties can include fines and imprisonment for up to five years for a first offense
- The (COPA) sought to restrict minors' access to harmful online content but was struck down as unconstitutional (Ashcroft v. ACLU)
State and local ordinances
- States and municipalities can enact their own obscenity laws within constitutional limits
- These laws may define obscenity differently or have additional restrictions on distribution, display, or zoning
- For example, some states have "harmful to minors" laws that prohibit the sale of sexually explicit materials to those under 18 (Ginsberg v. New York)
Zoning restrictions for adult businesses
- Local governments can use zoning ordinances to regulate the location and operation of adult businesses like strip clubs, adult bookstores, and movie theaters
- These ordinances aim to prevent the secondary effects of adult businesses, such as crime, decreased property values, and neighborhood deterioration
- must be content-neutral and narrowly tailored to serve a substantial government interest (City of Renton v. Playtime Theatres)
Prosecution of obscenity cases
- Prosecuting obscenity cases presents unique challenges for law enforcement and prosecutors due to the subjective nature of obscenity standards and the need to prove criminal intent
Proving obscenity beyond a reasonable doubt
- Prosecutors must prove each element of the Miller test beyond a reasonable doubt to secure an obscenity conviction
- This requires presenting evidence of the material's prurient appeal, patent offensiveness, and lack of redeeming value
- , community surveys, and comparisons to similar materials may be used to establish obscenity
Challenges in defining community standards
- The Miller test's reliance on contemporary community standards can lead to inconsistent results across different jurisdictions
- Prosecutors must present evidence of the relevant community's attitudes towards sexually explicit material, which can be difficult to quantify
- In the internet age, defining the applicable community has become even more complex, as online material can be accessed from anywhere
Defenses to obscenity charges
- Defendants in obscenity cases may raise various defenses, such as arguing that the material has redeeming social value or that it does not meet the Miller test
- The "knowingly" requirement in many obscenity statutes means that defendants must have had knowledge of the material's obscene nature
- Other potential defenses include mistake of fact, lack of commercial distribution, or that the material was accessed in a private setting
Obscenity in different media
- Obscenity standards have been applied to various forms of media, each presenting unique challenges and considerations
Print materials and books
- Historically, print materials were the primary focus of obscenity prosecutions, with cases like United States v. One Book Called "Ulysses" (1933) setting early precedents
- Modern obscenity cases involving books are relatively rare, as most publishers and booksellers self-regulate to avoid potentially obscene content
- Erotic literature and instructional materials on sexuality may still face scrutiny, particularly if marketed to minors
Visual arts and sculpture
- Visual artworks depicting nudity or sexual themes have been the subject of obscenity controversies, such as the Robert Mapplethorpe trial in 1990
- Museums, galleries, and artists may face pressure from public officials or community groups to remove or censor allegedly obscene works
- The Miller test's exemption for works with serious artistic value has provided some protection for controversial art
Film, video, and photography
- Motion pictures have been subject to obscenity laws since the early 20th century, with the Hays Code and later the MPAA rating system providing industry self-regulation
- Pornographic films and videos are the most common targets of modern obscenity prosecutions, particularly those involving extreme or violent content
- The rise of home video and streaming platforms has made it easier to distribute and access potentially obscene material, complicating enforcement efforts
Internet and digital content
- The internet has posed new challenges for obscenity law, as online content can be easily shared, copied, and accessed from anywhere in the world
- Websites, social media platforms, and online marketplaces may be held liable for hosting or distributing obscene material, leading to content moderation and removal policies
- Obscenity prosecutions involving digital content often focus on extreme , child exploitation materials, or nonconsensual intimate images
Societal impact of obscenity
- The debate over obscenity regulation reflects broader societal tensions between individual freedom, public morality, and gender equality
Moral and ethical considerations
- Supporters of obscenity laws argue that they protect public morals, prevent the corruption of youth, and uphold community standards of decency
- Opponents contend that obscenity is a subjective and moralistic concept that infringes on free expression and personal autonomy
- The changing nature of social attitudes towards sex and nudity over time complicates the application of obscenity standards
Feminist perspectives on pornography
- Some feminist scholars and activists argue that pornography is inherently harmful to women, objectifying them and contributing to a culture of sexual violence
- Anti-pornography feminists like Catharine MacKinnon and Andrea Dworkin have advocated for laws treating pornography as a civil rights violation against women
- Other feminists defend women's right to participate in and consume pornography as a matter of sexual agency and freedom of choice
Balancing free expression and public morality
- The ongoing debate over obscenity regulation reflects the difficulty of balancing competing social values and individual rights
- Courts and policymakers must weigh the importance of free speech and artistic expression against concerns about public morality, child protection, and gender equality
- As social attitudes continue to evolve and new forms of media emerge, the legal and ethical boundaries of obscenity will likely remain a subject of ongoing discussion and dispute
Key Terms to Review (27)
Censorship: Censorship refers to the suppression or prohibition of speech, public communication, or other information that may be considered objectionable, harmful, sensitive, or inconvenient by authorities or individuals. This practice can manifest in various forms such as government regulation, self-censorship by media organizations, or societal pressure to conform to certain norms. Censorship is often linked to issues of freedom of expression, especially when it involves materials deemed obscene or offensive.
Child Online Protection Act: The Child Online Protection Act (COPA) is a United States law enacted in 1998 aimed at protecting minors from harmful material on the internet. It imposes restrictions on commercial websites that may contain content deemed harmful to children, requiring these sites to take reasonable steps to restrict access to such material. The act was introduced as a means to balance freedom of expression with the need to safeguard children in the digital space.
Child pornography: Child pornography refers to any visual depiction of sexually explicit conduct involving a minor, which is illegal and considered a form of child exploitation. The law treats child pornography as a serious offense due to the profound harm it causes to children, as well as the societal implications it poses regarding sexual abuse and exploitation. The production, distribution, and possession of such materials are strictly prohibited under both federal and state laws.
Chilling effect: The chilling effect refers to the phenomenon where individuals or groups refrain from exercising their rights or engaging in certain behaviors due to the fear of legal repercussions or censorship. This can stifle free expression and discourage people from exploring controversial subjects, particularly in contexts like obscenity, where individuals may avoid sharing or creating content that could be deemed illegal or inappropriate.
Community standards: Community standards refer to the shared beliefs, values, and norms held by a specific group or society regarding what is considered acceptable or unacceptable behavior, particularly in relation to obscenity and expression. These standards are essential in determining how laws are applied, especially when assessing whether certain materials or actions are deemed obscene or inappropriate, as they can vary significantly from one community to another.
Contemporary community standards: Contemporary community standards refer to the prevailing values and norms of a specific community regarding what is considered acceptable or unacceptable, particularly in relation to matters of obscenity. This term is crucial in determining whether certain materials or expressions are deemed obscene, as the assessment relies on how an average person within the community perceives them. These standards can vary significantly between different communities, impacting legal interpretations and decisions surrounding obscenity.
Content regulation: Content regulation refers to the legal frameworks and policies that govern what can be communicated through various forms of media, particularly focusing on the restriction or control of obscene, offensive, or harmful material. This concept is especially relevant when addressing the challenges of balancing free expression with societal interests, such as protecting minors from inappropriate content.
Expert Testimony: Expert testimony refers to the specialized knowledge or opinions provided by a qualified expert in a particular field, used to help a judge or jury understand complex evidence or issues in a case. This type of testimony is crucial in legal proceedings, particularly when cases involve technical or scientific subjects that require professional interpretation. It serves as a bridge between expert knowledge and legal standards, ensuring that jurors can make informed decisions based on credible insights.
Federal obscenity statutes: Federal obscenity statutes are laws that define and regulate obscene materials at the national level, prohibiting the distribution and possession of content deemed to violate community standards of decency. These statutes are grounded in the First Amendment's protection of free speech but recognize that certain forms of expression, such as obscenity, can be restricted if they lack serious literary, artistic, political, or scientific value.
Film, Video, and Photography: Film, video, and photography are mediums used for capturing images or motion, serving as both artistic expressions and tools for documentation. These forms of visual media can convey messages and evoke emotions, playing a significant role in shaping societal perceptions, especially when discussing sensitive subjects such as obscenity.
First Amendment: The First Amendment is a part of the United States Constitution that protects several fundamental rights, including the freedom of speech, religion, press, assembly, and petition. This amendment serves as a cornerstone for civil liberties in America, shaping the legal landscape surrounding free expression and the regulation of obscene material.
Fourteenth Amendment: The Fourteenth Amendment to the United States Constitution, ratified in 1868, grants citizenship to all persons born or naturalized in the U.S. and ensures that states provide equal protection under the law. This amendment plays a critical role in protecting individual rights against state infringement and has been pivotal in various landmark Supreme Court cases regarding civil rights and liberties.
Free speech: Free speech is the right to express one's opinions and ideas without fear of government retaliation or censorship. This fundamental principle is rooted in the belief that open dialogue is essential for democracy, allowing individuals to share diverse perspectives and challenge societal norms. However, free speech is not absolute; certain categories of speech, such as obscenity, can be regulated under law.
Harmful to minors laws: Harmful to minors laws are statutes designed to protect minors from exposure to material deemed inappropriate or damaging to their well-being, particularly in terms of sexual content. These laws aim to regulate the distribution and accessibility of such materials, often targeting pornography and explicit content, with the intention of safeguarding young individuals from potential psychological harm or moral corruption.
Internet and digital content: Internet and digital content refers to any information or media that is created, stored, and distributed through digital means, typically accessed via the internet. This includes websites, social media, streaming services, digital images, music, videos, and other forms of electronic communication that can be shared globally. The rapid growth of the internet has made digital content a major aspect of modern communication, entertainment, and information dissemination.
Miller Test: The Miller Test is a three-part standard used by courts to determine whether certain materials can be classified as obscene and therefore unprotected by the First Amendment. This test considers whether the average person would find that the work appeals to the prurient interest, whether it depicts or describes sexual conduct in a patently offensive way, and whether it lacks serious literary, artistic, political, or scientific value. This test is crucial in distinguishing between protected free speech and material that can be legally restricted due to obscenity.
Miller v. California: Miller v. California is a landmark Supreme Court case from 1973 that established the modern legal definition of obscenity, which is not protected by the First Amendment. The decision set forth a three-part test to determine whether material is obscene, focusing on whether the average person would find it appealing to prurient interests, whether it depicts sexual conduct in an offensive way, and whether it lacks serious literary, artistic, political, or scientific value. This ruling significantly influenced how courts evaluate cases involving obscenity.
Moral Outrage: Moral outrage is a strong emotional response to perceived violations of moral principles, often leading to feelings of anger or disgust. This reaction can arise when individuals or groups believe that certain actions or behaviors are morally wrong, triggering a demand for justice or change. In various contexts, moral outrage can influence public opinion and drive movements aimed at addressing injustices.
Patently offensive: The term 'patently offensive' refers to material that is considered to be openly and clearly inappropriate or unacceptable by community standards, particularly in the context of obscenity laws. This standard is used to evaluate whether certain types of speech or expressions, such as visual or written content, cross the line into the realm of obscenity. The concept is crucial in determining what can be legally regulated or prohibited under First Amendment protections.
Pornography: Pornography refers to the explicit depiction of sexual subject matter for the purpose of sexual arousal and gratification. This term encompasses a wide range of media, including films, magazines, and online content, that portray sexual acts or nudity. The distinction between pornography and obscenity lies in legal definitions and societal interpretations, as not all pornography is considered obscene under the law.
Prior restraint: Prior restraint refers to government actions that prevent speech or other expressions before they occur, often seen as a violation of the First Amendment rights. It connects to issues of censorship, especially in the context of obscenity, where the government may seek to suppress materials deemed offensive or harmful. This concept raises critical questions about the balance between free expression and protecting societal norms.
Prurient Interest: Prurient interest refers to an excessive or unhealthy interest in sexual matters, often associated with the desire to engage in sexual conduct or the viewing of sexually explicit content. This term plays a significant role in determining whether material is deemed obscene under the law, as it is one of the factors considered when assessing the overall nature of the content and its potential impact on audiences.
Public Interest: Public interest refers to the welfare or well-being of the general public and is often used as a standard for evaluating the appropriateness of certain actions, regulations, or legal decisions. It encompasses the idea that certain forms of expression or content may be limited if they conflict with societal values or harm community standards. This concept plays a crucial role in balancing individual rights with collective societal concerns, especially when it comes to matters like obscenity.
Roth v. United States: Roth v. United States is a landmark Supreme Court case from 1957 that addressed the issue of obscenity and free speech under the First Amendment. The ruling established that obscenity is not protected by the First Amendment, creating a clearer distinction between what constitutes protected speech and what does not, particularly in relation to sexually explicit material. This case significantly influenced how obscenity laws were interpreted in subsequent legal decisions.
Socially redeeming value: Socially redeeming value refers to the positive aspects or benefits that a work may provide to society, potentially outweighing its negative content. This concept often comes into play when evaluating material that might be deemed obscene or offensive, as it suggests that certain works can contribute to the public good through education, artistic expression, or social commentary.
Visual Arts and Sculpture: Visual arts encompass a broad range of creative expressions that focus on visual perception, including painting, drawing, photography, and sculpture. Sculpture specifically refers to three-dimensional art forms created by shaping or combining materials like stone, metal, or clay. Both visual arts and sculpture can be important in discussions around expression, culture, and sometimes the boundaries of societal norms, especially when it comes to content that may be considered obscene.
Zoning Restrictions: Zoning restrictions are legal regulations that dictate how land can be used in certain areas. These rules are designed to organize urban growth, separate incompatible land uses, and promote the health, safety, and general welfare of the community, often intersecting with issues surrounding obscenity and adult entertainment establishments.