What Is Obscenity?
Obscenity — The character or quality of being obscene; an act, utterance, or item tending to corrupt the public morals by its indecency or lewdness. It refers to a narrow category of pornography that violates contemporary community standards and has no serious literary, artistic, political or scientific value. For adults at least, most pornography receives constitutional protection.
Obscenity is not protected under First Amendment rights to free speech, and violations of Federal obscenity laws are criminal offenses, according to the Dept. of Justice . Federal law makes it illegal to distribute, transport, sell, ship, mail, produce with intent to distribute or sell, or engage in a business of selling or transferring obscene matter. Convicted offenders face fines and imprisonment.
Although the law generally does not criminalize the private possession of obscene matter, the act of receiving such matter could violate Federal laws prohibiting the use of the mails, common carriers, or interactive computer services for the purpose of transportation.
The U.S. courts use a three-pronged test, commonly referred to as the Miller test, to determine if given material is obscene. Obscenity is defined as anything that fits the criteria of the Miller test, which may include, for example, visual depictions, spoken words, or written text.
Overview The Miller test was developed in the 1973 case Miller v. California. It has three parts:
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 a patently offensive way, sexual conduct specifically defined by applicable state law,
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
A work is considered obscene only if all three conditions are satisfied.
The first two prongs of the Miller test are held to the standards of the community, and the last prong is held to what is reasonable to a person of the United States as a whole. The national reasonable person standard of the third prong acts as a check on the community standard of the first two prongs, allowing protection for works that, in a certain community, might be considered obscene, but on a national level might have redeeming value.
For legal scholars, several issues are important. One is that the test allows for community standards, rather than a national standard. What offends the average person in Manhattan, Kansas, may differ from what offends the average person in Manhattan, New York. The relevant community, however, is not defined.
Another important issue is that Miller asks for an interpretation of what the “average” person finds offensive, rather than what the more sensitive persons in the community are offended by, as obscenity was defined by the previous test, the Hicklin test, stemming from the English precedent.
In practice, pornography showing genitalia and sexual acts is not ipso facto obscene, according to the Miller test. For instance, in 2000, a jury in Provo, Utah, took only a few minutes to clear Larry Peterman, owner of a Movie Buffs video store, in Utah County, Utah, a region which had often boasted of being one of the most conservative areas in the U.S. Researchers had shown that guests at the local Marriott Hotel were disproportionately large consumers of pay-per-view pornographic material, accessing far more material than the store was distributing.
Criticism : Less strict standards may lead to greater censorship.
Huh?
Because it allows for community standards, and demands “serious” value, Justice Douglas worried in his dissent that this test would make it easier to suppress speech and expression. Miller replaced a previous test asking whether the speech or expression was “utterly without redeeming social value.” As used, however, the test generally makes it difficult to outlaw any form of expression. Many works decried as pornographic have been successfully argued to have some artistic or literary value, most publicly in the context of the National Endowment for the Arts in the 1990’s.
The Problem of Definition:
Critics of obscenity law argue that defining what is obscene is paradoxical, arbitrary, and subjective. They state that lack of definition of obscenity in the statutes, coupled with the existence of hypothetical entities and standards as ultimate arbiters within the Miller Test (hypothetical “reasonable persons” and “contemporary community standards”) proves that Federal obscenity laws are, in fact, not defined, do not satisfy the vagueness doctrine, and thus are unenforceable and legally dubious.
The Problem of Jurisdiction in the Internet Age:
The advent of the Internet has made the “community standards” part of the test more difficult to judge: as material published on a web server in one place can be read by a person residing anywhere else, there is a question as to which jurisdiction should apply. In United States of America v. Extreme Associates, a pornography distributor from North Hollywood, California, was judged to be held accountable to the community standards applying in western Pennsylvania, where the Third Circuit made its ruling, because the materials were available via Internet in that area. The Ninth Circuit has ruled that a “national community standard” should be used for the Internet, but this has yet to be upheld at the national level.
History and Details Obscenity is a legal term that applies to anything offensive to morals, and is often equated with the term “pornography.” Pornography, however, is a more limited term, which refers to the erotic content of books, magazines, films, and recordings. Obscenity includes pornography, but may also include nude dancing, sexually oriented commercial telephone messages, and scatological comedy routines. U.S. courts have had a difficult time determining what is obscene. This problem has serious implications, because if an act or an item is deemed obscene, it is not protected by the First Amendment.
Until the mid-nineteenth century, and the Victorian era in Great Britain and the United States, sexually explicit material was not subject to statutory prohibition. The Federal Comstock Law of 1873 criminalized the transmission and receipt of “obscene,” “lewd,” or “lascivious” publications through the U.S. mail. U.S. courts looked to the English case of Regina v. Hicklin, 3 L.R.-Q.B. 360 (1868), for a legal definition of obscenity. The Hicklin test was “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” This test permitted judges to look at objectionable words or passages without regard for the work as a whole, and without respect to any artistic, literary, or scientific value the work might have.
In 1930, Massachusetts courts declared both Theodore Dreiser’s novel An American Tragedy and D.H. Lawrence’s novel Lady Chatterly’s Lover obscene. An important break from Hicklin came in a lawsuit over the U.S. publication of James Joyce’s novel, Ulysses. Both at the trial and appellate levels, the Federal courts held that the book was not obscene (United States v. One Book Called “Ulysses,” 5 F. Supp. 182 [S.D.N.Y. 1933], aff’d 72 F.2d 705 [2d Cir. 1934]). The courts rejected the Hicklin test, and suggested a standard based on the effect on the average reader of the dominant theme of the work as a whole
In 1957, the U.S. Supreme Court retired the Hicklin test in Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498. Justice William J. Brennan, Jr. stated that obscenity is “utterly without redeeming social importance,” and therefore was not protected by the First Amendment. He announced, as a new test, “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient [lewd or lustful] interest.” The new test was applicable to every level of government in the United States.
The Roth test proved difficult to use because every term in it eluded a conclusive definition. The Supreme Court Justices could not fully agree what constituted “prurient interest,” or what “redeeming social importance” meant. Justice Potter Stewart expressed this difficulty at defining obscenity when he remarked, “I know it when I see it.” (Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 [1964])
The Supreme Court added requirements to the definition of obscenity in a 1966 case involving the bawdy English novel, Fanny Hill. In Memoir v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1, the Court concluded that to establish obscenity, the material must, aside from appealing to the prurient interest, be “utterly without redeeming social value,” and “patently offensive because it affronts contemporary community standards relating to the description of sexual matters.” The requirement that the material be “utterly” without value made prosecution difficult. Defendants presented expert witnesses, such as well known authors, critics, or scholars, who attested to the literary and artistic value of sexually charged books and films.
The Supreme Court did make conclusive rulings on two other areas of obscenity in the 1960’s. In Ginzburg v. United States, 383 U.S. 463, 86 S. Ct. 942, 16 L. Ed. 2d 31 (1966), the Court held that “pandering” of material by mailed advertisements, designed to appeal to a prurient interest, could be prosecuted under the Federal obscenity statute. Even if the material in publisher Ralph Ginzburg’s Eros magazine was not obscene, the Court was willing to allow the government to punish Ginzburg for appealing to his prospective subscribers’ prurient interest.
Later, in Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), the Court held that the First and Fourteenth Amendments prohibited making the private possession of obscene material a crime.
The failure of the Warren Court to achieve consensus over the Roth test kept the definition of obscenity in limbo. Then, in 1973, aided by conservative justices Lewis F. Powell, Jr. and William H. Rehnquist, Chief Justice Warren Earl Burger restated the constitutional definition of obscenity in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419. Burger explicitly rejected the “utterly without redeeming social value” standard:
The basic guidelines for the trier of fact must be (a) whether the “average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest …, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Burger noted that the new test was intended to address “‘hardcore’ sexual conduct,” which included “patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated … masturbation, excretory functions, and lewd exhibitions of genitals.”
In 1987, the Supreme Court modified the “contemporary community standards” criteria. In Pope v. Illinois, 481 U.S. 497, 107 S. Ct. 1918, 95 L. Ed. 2d 439, the Court stated that the “proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, and scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.” It is unclear whether the “reasonable person” standard represents a liberalization of the obscenity test.
In 1989, the Supreme Court unanimously held that the First Amendment’s guarantee of free speech protected indecent, sexually explicit telephone messages (Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 109 S. Ct. 2829, 106 L. Ed. 2d 93). The Court ruled that a Federal law that attempted to ban “Dial-a-Porn” commercial phone services over interstate telephone lines (Pub. L. No. 100-297, 102 Stat. 424) to shield minors from obscenity was unconstitutional, because it applied to indecent as well as obscene speech. The Court indicated, however, that obscene calls could be prohibited
Congressional attempts to prevent the Internet from being used to distribute obscene materials have been blocked by Supreme Court decisions. The Communications Decency Act of 1996 (CDA), codified at 47 U.S.C.A. § 223(b), as amended, 47 U.S.C.A. § 223(b), was designed to outlaw obscene and indecent sexual material in cyberspace. One section made it a Federal crime to use Telecommunications to transmit “any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication.”
The American Civil Liberties Union (ACLU) and 20 other plaintiffs immediately filed a lawsuit challenging the constitutionality of the CDA’s provisions, especially the part of the CDA that dealt with indecent material. In Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997), the Supreme Court recognized the “legitimacy and importance of the congressional goal of protecting children from harmful materials,” but ruled that the CDA abridged Freedom of Speech, and therefore was unconstitutional.
The Court was most troubled by the CDA’s “many ambiguities.” The concern, in particular, was that the act’s undefined terms indecent and patently offensive would provoke uncertainty as to how the two standards relate to each other, and just what they mean. The vagueness of this content-based regulation, along with its criminal penalties, led the Court to conclude that the CDA would have a “chilling effect” on free speech. In addition, the CDA did not deal with key parts of the Miller test. One element from Miller which was missing from the CDA requires that the proscribed material must be “specifically defined by the applicable state law.”
This, in the Court’s view, would have reduced the vagueness of the term “patently offensive.” Another important element of the Miller test is the requirement that the material, “taken as a whole, lacks serious literary, artistic, political, or scientific value.” The Court found that this “societal value” requirement allowed appellate courts “to impose some limitations and regularity on the definition by setting, as a Matter of Law, a national floor for socially redeeming value.” The failure of the CDA to include this element meant that the law posed a serious threat to censor speech that was outside the statute’s scope Congress sought to address these deficiencies, in 1998, when it passed the Child Online Protection Act (COPA). COPA attempted to limit restrictions on pornographic material to communications made for commercial purposes.
Although Congress incorporated the Miller test in hopes that the law would pass constitutional muster, the ACLU and a group of online website operators challenged the constitutionality of COPA, arguing that it was overbroad. In addition, the plaintiffs contended that the use of the community standards test would give any community in the United States the ability to file civil and criminal lawsuits under COPA.
The Supreme Court, in Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002), issued what many legal commentators considered to be a murky decision that suggested the law might be overbroad. It referred the case back to the district court for a full hearing on the merits of the case.
Obscenity challenges are not restricted to pornographic content. In City of Erie v. Pap’s A. M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000), the Supreme Court moved from cyberspace to real estate when it held that a city could prevent the location of a nude dancing club using its Zoning law powers. The Court ruled that the zoning ordinance did not violate the First Amendment because the government sought to prevent the means of the expression, and not the expression itself.
In 1994, Erie, Pennsylvania, enacted an ordinance that made it a crime to knowingly or intentionally appear in public in a “state of nudity.” The Court held that nude dancing is “expressive conduct” that “falls only within the outer ambit” of First Amendment protection. It based its analysis on the framework for contentneutral restrictions on Symbolic Speech set forth in the draft registration card case, United States v. O’Brien, 391 U.S. 367, 88 S. Ct.1673, 20 L. Ed. 2d 672 (1968).
The first factor of the O’Brien test is whether the government regulation is within the constitutional power of the government to enact. The Court concluded that Erie had the power to protect public health and safety.
The second factor is whether the regulation furthers an important or substantial government interest. The city based its ban on public nudity as a way of combating the harmful secondary effects associated with nude dancing. The preamble to the ordinance stated that Erie City Council had, for over 100 years, expressed “its findings that certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare, and lead to the debasement of both women and men, promote violence, public intoxication, prostitution and other serious criminal activity.” The Supreme Court found this an important government interest. The ordinance also satisfied O’Brien’s third factor, that the government interest is unrelated to the suppression of free expression.
Assessing whether an activity or object is obscene based on community standards is problematic, especially when community values change over time. For example, in the case of the “cussin’ canoeist,” a Michigan man was convicted, in 1999, for violating an 1897 state law making it illegal to use obscenities and profanities while in public. He had been cited for loudly swearing while in a canoe on a public stream.
However, the Michigan court of appeals reversed his conviction in 2002. The court struck down the nineteenth-century statute, ruling that the law unquestionably “operates to inhibit the exercise of First Amendment Rights.” (Michigan v. Boomer, 250 Mich. App. 534, 655 N.W.2d 255 [Mich.App.2002]) Another sticking point in obscenity prosecutions involves the often-overbroad interpretation of what is obscene. In recent years, state appellate courts have struck down laws that made it criminally obscene for a parent to photograph his or her own child playing in a bathtub, or running nude on a beach.
