Obscenity

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Obscenity is either the state of being lewd and indecent, or something that is lewd or indecent. This naturally depends on prevailing societal norms and taboos, which have not been constant or absolute across cultures and times. As the definition of obscenity varies across cultures, so do the laws regarding it. Because the concept of obscenity is often ill-defined, and is a subjective judgment, it can be used as a political tool to try to restrict freedom of expression. Thus, the definition of obscenity can be a civil liberties issue.

Still, most societies regard the existence of standards defining what is acceptable and what is not, in public display, as essential, particularly with regard to the education of youth as good citizens. While religious texts and beliefs provide some guidance, these are often inadequate and ambiguous, and subject to different interpretations depending on the sensitivities of those involved. Ultimately, while laws may be unable to describe unambiguously that which is offensive, the human conscience recognizes obscenity and thus a true human being, as Justice Potter Steward famously noted, can say "I know it when I see it."

Contents

Definition

Obscenity (in Latin obscenus, meaning "foul, repulsive, detestable," possibly derived from ob caenum, literally "from filth") is a term most often used in a legal context to describe expressions (words, images, actions) that offend the prevalent sexual morality of the time.

Despite its long formal and informal use with a sexual connotation, the word still retains the meanings of "inspiring disgust" and even "inauspicious; ill-omened," as in such uses as "obscene profits," and "the obscenity of war," for example. It can simply be used to mean profanity, or it can mean anything that is taboo, indecent, abhorrent, or disgusting.

The definition of obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities. Many cultures have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions, usually including but not limited to pornographic material.

In global culture

Countries have different standings on the types of materials that they as legal bodies permit their citizens to have access to and disseminate among their local populations. Not only does the permissible content vary widely, the treatment of obscenity before the law also varies.

The punishment for violation of such restrictions also varies considerably. Some countries have extreme punishment up to and including execution; for example, Iran has laws that include death sentences for those convicted of producing pornography.

United States

The United States has constitutional protection for freedom of speech, which, however, is not interpreted to protect every utterance. The Supreme Court has found that, when used in the context of the First Amendment, the word "obscenity" is usually limited to content that directly refers to explicit sexual acts that are publicly accessible, though has at times encompassed other subject matters such as spoken and written language that can be publicly transmitted and received by the general public.

The legal term of obscenity usually denotes a distinction between socially permitted material and discussions that the public can access versus those that should be denied. There does exist a classification of those acceptable materials and discussions that the public should be allowed to engage in, and the access to that same permitted material—which in the areas of sexual materials ranges between the permitted areas of art (which can be represented by "classic nude forms" including Michelangelo's David statue) and the less appreciated commercial pornography.

The legal distinction between artistic nudity and permitted commercial pornography (which includes sexual penetration) that are deemed as "protected forms of speech" versus "obscene acts" (which are illegal acts and separate from those permitted areas) is usually determined by the predominant cultural views. The accepted areas are deemed to fit those sexual acts regarded as "normal," while the obscene areas are considered to be deviant or unworthy of public access. For example, in the United States, images of mere human nudity and single couple heterosexual, vaginal-only penetration are listed as protected speech, while images showing anal and homosexual penetration are not. However, no such specific objective distinction exists outside of legal decisions in federal court cases, where a specific action has been deemed to fit the classification of obscene and thus, rendered illegal. The difference between erotic art and (protected) commercial pornography, as compared to that which is legally obscene (and thus not covered by First Amendment protection), appears to be subjective to the local federal districts inside the United States and the local moral standards at the time.

Federal obscenity law in the U.S. is highly unusual in that not only is there no uniform national standard, but rather, there is an explicit legal precedent (the "Miller test") which all but guarantees that something which is legally "obscene" in one jurisdiction may not be in another. In effect, the First Amendment protections of free speech vary by location within the U.S., and over time. With the advent of Internet distribution of potentially obscene material, this question of jurisdiction and "community standards" has created significant controversy in the legal community. (As in United States v. Thomas, 74 F.3d 701 (6th Cir. 1996)) Even at the federal level, there does not exist a specific listing of which exact acts are to classified as "obscene" outside of the legally determined court cases. Former Justice Potter Stewart of the Supreme Court of the United States, in attempting to classify what material constituted exactly "what is obscene," famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced … [b]ut I know it when I see it…."[1]

Miller test

The "Miller test" is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.

The Miller test was developed in the 1973 case Miller v. California.[2] It has three parts:

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

The work is considered obscene only if all three conditions are satisfied.

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 Mobile, Alabama, may differ from what offends the average person in New York City. 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.

Some critics of obscenity law argue that the existence of Miller proves that federal obscenity laws are in fact not defined, and thus unenforceable and legally dubious.[3]

United Kingdom

The Obscene Publications Acts are a series of laws that basically determine the criteria for what material is allowed to be publicly accessed and distributed within the member countries of the United Kingdom. John Coleridge, 1st Baron Coleridge, established the basic definition of obscenity as anything that "tends to deprave and corrupt." The laws are designed to protect literature and to separate the obscene from legitimate pieces of art. The laws were tested in 1963, with the release of D. H. Lawrence's Lady Chatterley's Lover, which was brought to trial and acquitted under protection from the Obscene Publication Act of 1959.[4]

Canada

Section 163 of the Canadian Criminal Code provides the country's legal definition of "obscenity." Officially termed as "Offences Tending to Corrupt Morals," the Canadian prohibited class of articles which are to be legally included as "obscene things" is very broad, including text-only written material, pictures, models (including statues), records or "any other thing whatsoever"—according to Section 163(8)—of which "a dominant characteristic of the publication is the undue exploitation of sex, or the combination of sex and at least one of crime, horror, cruelty or violence" is deemed to be "obscene" under the current law.

Section 163.1 of the current law states that that Every one commits an offense who

(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution, or circulation any obscene written matter, picture, model, phonograph record or other thing whatever; or
(b) makes, prints, publishes, distributes, sells or has in his possession for the purposes of publication, distribution, or circulation a crime comic.

"Crime comics" are stated to be books that glorify criminal activities and have at least one depiction of such criminal actions of the book's text.[5]

Asia

Norms of obscenity vary across Asia. Relatively liberal countries such as Japan have less stringent obscenity laws, whereas conservative countries such as Pakistan have very strict definitions of what is socially acceptable.[6] In India, for example, some activists have taken to ransacking liquor stores deemed obscene because the Qur'an bans consumption of alcohol.[7]

Africa

Laws can be similarly oppressive in Africa. Modern music has been condemned as obscene by some traditionally minded Africans.[8] Also, some conservatives have labeled homosexuality an obscenity and actively persecute it in Africa.[9]

Obscenity and religion

Many of the foundations for assessing works as obscene are in religion. Much debate exists over the basis for such assessments. The major sins are clearly delineated in forbidden actions; but obscenity has no such obvious definition. While there are many scriptures that warn believers against doing that which offends or is not pleasing to God, the interpretation of what pleases or offends God is not easy for one to make. Nevertheless, the devout and those of priestly orders often consider their judgment on what is obscene to be in line with that of heaven.

Sects within religions often disagree over what is and what is not proper conduct and what might be considered obscene. Many times those in more conservative sects of a religion view items and expressions in the latest trends of popular culture as obscene. These assessments may not necessarily result from any direct textual reference, but may reflect the more conservative nature of those individuals.

Notes

  1. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
  2. Findlaw.com, Text of the decision and dissents. Retrieved August 20, 2007.
  3. The Ethical Spectacle, There is no Such Thing as Obscenity. Retrieved August 20, 2007.
  4. Screen Online, 1959 Obscene Publications Act. Retrieved October 5, 2007.
  5. Canada Legal Information Institute, Offences Tending to Corrupt Morals. Retrieved October 6, 2007.
  6. Monsters and Critics, Pakistani clerics threaten government with "obscenity" clampdown. Retrieved August 20, 2007.
  7. BBC News, Kashmir Women Fight "Obscenity." Retrieved August 20, 2007.
  8. BBC News, Do you enjoy modern music? Retrieved August 20, 2007.
  9. ILGA, End Homophobia in Africa. Retrieved August 20, 2007.

References

  • Bahn, Paul. 2007. Ancient Obscenities: Or Things You Shouldn't Know About the History of Mankind!. Nonsuch Publishing. ISBN 1845883500
  • Gurstein, Rochelle. 1998. The Repeal of Reticence: A History of America's Cultural and Legal Struggles over Free Speech, Obscenity, Sexual Liberation, and Modern Art. Hil & Wang Publishers. ISBN 0809016125
  • Harrison, Maureen. 2000. Obscenity and Pornography Decisions of the United States Supreme Court. ISBN 1880780232
  • Henderson, Jeffrey. 1991. The Maculate Muse: Obscene Language in Attic Comedy. Oxford University Press. ISBN 0195066855
  • McDonald, Nicola. 2006. Medieval Obscenities. York Medieval Press. ISBN 1903153182
  • O'Toole, L. 1998. Pornocopia: Porn, Sex, Technology and Desire. London: Serpent's Tail. ISBN 1-85242-395-1
  • Wheeler, Leigh Anne. 2007. Against Obscenity: Reform and the Politics of Womanhood in America, 1873—1935. Johns Hopkins University Press. ISBN 0801886384

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