Difference between revisions of "Obscenity" - New World Encyclopedia
| Line 13: | Line 13: | ||
== In global culture== | == 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. | + | 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 variation in punishment for violation of restrictions also varies considerably. Some countries have extreme [[punishment]] up to and including [[execution]], as in the case of [[Iran]] where laws against [[pornography]] include death sentences for those convicted of producing pornography. | |
| − | |||
=== United States === | === United States === | ||
| − | The [[United States]] has constitutional protection for [[freedom of speech]], which is not interpreted to protect every utterance. The [[U.S. Supreme Court|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 [[United States]] has constitutional protection for [[freedom of speech]], which, however, is not interpreted to protect every utterance. The [[U.S. Supreme Court|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 | + | 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 erotic [[art]] (which are can be stated to be represented by usually "classic nude forms" representations 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 culture appreciation regarding such. 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 [[homosexuality|homosexual]] penetration are not. However, no such specific objective distinction exists outside of legal decisions in federal court cases where a specific action is deemed to fit the classification of obscene and thus 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 "[[Obscenity#Miller test|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. (See ''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 . . ."<ref>''Jacobellis v. Ohio'', 378 U.S. 184, 197 (1964).</ref> | ||
====Miller test==== | ====Miller test==== | ||
| − | The | + | The "Miller test" is the [[Supreme Court of the United States|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]]''<ref>*[http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/413/15.html Text of the decision and dissents], from findlaw.com. Retrieved August 20, 2007.</ref>. It has three parts: | The Miller test was developed in the 1973 case ''[[Miller v. California]]''<ref>*[http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/413/15.html Text of the decision and dissents], from findlaw.com. Retrieved August 20, 2007.</ref>. 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 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 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 [[Literature|literary]], [[art]]istic, [[Politics|political]], and [[Science|scientific]] value. | *Whether the work, taken as a whole, lacks serious [[Literature|literary]], [[art]]istic, [[Politics|political]], and [[Science|scientific]] value. | ||
| Line 36: | Line 37: | ||
The work is considered obscene only if all three conditions are satisfied. | 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]]. | + | 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. <ref name="No Such Thing">{{cite web|last= |first= |authorlink= |coauthors= | date=February 1996 |url=http://www.spectacle.org/296/obscene.html |title=There is no Such Thing as Obscenity |format= |work= |pages= |publisher=The Ethical Spectacle |accessdate= August 20|accessyear= 2007}}</ref><ref>{{cite web|last=Huston |first=William A. | + | 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.<ref name="No Such Thing">{{cite web|last= |first= |authorlink= |coauthors= | date=February 1996 |url=http://www.spectacle.org/296/obscene.html |title=There is no Such Thing as Obscenity |format= |work= |pages= |publisher=The Ethical Spectacle |accessdate= August 20|accessyear= 2007}}</ref><ref>{{cite web|last=Huston |first=William A. |authorlink= |coauthors= | date= |url=http://www.nexusjournal.org/2005obscenity/75-82.pdf |title=Under Color of Law: Obscenity vs. the First Amendment |format= |work= |pages=75-82 |publisher= |accessdate= August 20|accessyear= 2007 }}</ref> |
=== United Kingdom=== | === United Kingdom=== | ||
| − | The [[Obscene Publications Act]]s 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 | + | The [[Obscene Publications Act]]s 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.<ref>[http://www.screenonline.org.uk/film/id/593568/index.html 1959 Obscene Publications Act] Screen Online. Retrieved October 5, 2007.</ref> |
=== Canada === | === Canada === | ||
| − | Section 163 of the Canadian Criminal Code provides the country's legal definition of "obscenity." | + | Section 163 of the Canadian Criminal Code provides the country's legal definition of "obscenity." Officially termed as |
| − | "Offences Tending to Corrupt Morals" | + | "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" — that according to Section 163(8) — has "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 | + | Section 163.1 of the current law states that |
Every one commits an offense who | 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 | :(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. | :(b) makes, prints, publishes, distributes, sells or has in his possession for the purposes of publication, distribution or circulation a crime comic. | ||
| Line 58: | Line 57: | ||
===Asia=== | ===Asia=== | ||
| − | Norms of obscenity vary across Asia. Relatively liberal countries such as Japan have less stringent obscenity laws whereas such conservative countries as Pakistan have very strict definitions of what is socially acceptable.<ref>[http://news.monstersandcritics.com/southasia/news/article_1297350.php/Pakistani_clerics_threaten_government_with_"obscenity%22_clampdown Pakistani clerics threaten government with "obscenity" clampdown] Monsters and Critics. Retrieved August 20, 2007.</ref> In India, for example, some activists have taken to ransacking liquor stores deemed obscene because of the Qur'an's banning consumption of alcohol.<ref>[http://news.bbc.co.uk/1/hi/world/south_asia/4198768.stm Kashmir Women Fight 'Obscenity'] BBC News. Retrieved August 20, 2007.</ref> | + | Norms of obscenity vary across [[Asia]]. Relatively liberal countries such as [[Japan]] have less stringent obscenity laws whereas such conservative countries as [[Pakistan]] have very strict definitions of what is socially acceptable.<ref>[http://news.monstersandcritics.com/southasia/news/article_1297350.php/Pakistani_clerics_threaten_government_with_"obscenity%22_clampdown Pakistani clerics threaten government with "obscenity" clampdown] Monsters and Critics. Retrieved August 20, 2007.</ref> In [[India]], for example, some activists have taken to ransacking liquor stores deemed obscene because of the [[Qur'an]]'s banning consumption of [[alcohol]].<ref>[http://news.bbc.co.uk/1/hi/world/south_asia/4198768.stm Kashmir Women Fight 'Obscenity'] BBC News. Retrieved August 20, 2007.</ref> |
===Africa=== | ===Africa=== | ||
| − | Laws can be similarly oppressive in Africa. Modern music has been condemned as obscene by traditionally minded Africans.<ref>[http://news.bbc.co.uk/2/hi/africa/4690050.stm Do you enjoy modern music?] BBC News. Retrieved August 20, 2007.</ref> Conservatives have labeled [[homosexuality]] an obscenity and actively persecute it in Africa.<ref>[http://www.ilga.org/print.asp?LanguageID=1&FileCategoryID=1&FileID=778&ZoneID=2& End Homophobia in Africa] ILGA. Retrieved August 20, 2007.</ref> | + | Laws can be similarly oppressive in [[Africa]]. Modern [[music]] has been condemned as obscene by traditionally minded Africans.<ref>[http://news.bbc.co.uk/2/hi/africa/4690050.stm Do you enjoy modern music?] BBC News. Retrieved August 20, 2007.</ref> Conservatives have labeled [[homosexuality]] an obscenity and actively persecute it in Africa.<ref>[http://www.ilga.org/print.asp?LanguageID=1&FileCategoryID=1&FileID=778&ZoneID=2& End Homophobia in Africa] ILGA. Retrieved August 20, 2007.</ref> |
| + | |||
| + | ==Obscenity and religion== | ||
| + | Many of the foundations for assessing works as obscene are in [[religion]]. Much debate exists over the basis for such assessments. While the major [[sin]]s are more clearly delineated in actions, obscenity has no such 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 for man 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 and what is not proper conduct and what might be considered obscene. Many times those in more conservative sects of a religion happen to view items in culture as obscene. These assessments may not necessarily result from any direct textual reference, but are reflective of the more conservative nature of these people. | |
| − | |||
==Notes== | ==Notes== | ||
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Obscenity is either the state of being lewd and indecent or something that is lewd or indecent. The definition of obscenity varies across cultures as do the laws regarding it. Because the concept of obscenity is often ill-defined, 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.
Definition
Obscenity (in Latin obscenus, meaning "foul, repulsive, detestable," possibly derived from ob caenum, literally "from filth"). The term is 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," "the obscenity of war," and the like. 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 variation in punishment for violation of restrictions also varies considerably. Some countries have extreme punishment up to and including execution, as in the case of Iran where laws against pornography 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 erotic art (which are can be stated to be represented by usually "classic nude forms" representations 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 culture appreciation regarding such. 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 is deemed to fit the classification of obscene and thus 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. (See 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][4]
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.[5]
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" — that according to Section 163(8) — has "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
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.[6]
Asia
Norms of obscenity vary across Asia. Relatively liberal countries such as Japan have less stringent obscenity laws whereas such conservative countries as Pakistan have very strict definitions of what is socially acceptable.[7] In India, for example, some activists have taken to ransacking liquor stores deemed obscene because of the Qur'an's banning consumption of alcohol.[8]
Africa
Laws can be similarly oppressive in Africa. Modern music has been condemned as obscene by traditionally minded Africans.[9] Conservatives have labeled homosexuality an obscenity and actively persecute it in Africa.[10]
Obscenity and religion
Many of the foundations for assessing works as obscene are in religion. Much debate exists over the basis for such assessments. While the major sins are more clearly delineated in actions, obscenity has no such 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 for man 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 and what is not proper conduct and what might be considered obscene. Many times those in more conservative sects of a religion happen to view items in culture as obscene. These assessments may not necessarily result from any direct textual reference, but are reflective of the more conservative nature of these people.
Notes
- ↑ Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
- ↑ *Text of the decision and dissents, from findlaw.com. Retrieved August 20, 2007.
- ↑ There is no Such Thing as Obscenity. The Ethical Spectacle (February 1996). Retrieved August 20, 2007.
- ↑ Huston, William A.. Under Color of Law: Obscenity vs. the First Amendment pp. 75-82. Retrieved August 20, 2007.
- ↑ 1959 Obscene Publications Act Screen Online. Retrieved October 5, 2007.
- ↑ Offences Tending to Corrupt Morals Canada Legal Information Institute. Retrieved October 6, 2007.
- ↑ Pakistani clerics threaten government with "obscenity" clampdown Monsters and Critics. Retrieved August 20, 2007.
- ↑ Kashmir Women Fight 'Obscenity' BBC News. Retrieved August 20, 2007.
- ↑ Do you enjoy modern music? BBC News. Retrieved August 20, 2007.
- ↑ End Homophobia in Africa ILGA. Retrieved August 20, 2007.
ReferencesISBN links support NWE through referral fees
- Bahn, Paul. Ancient Obscenities: Or Things You Shouldn't Know About the History of Mankind!, Nonsuch Publishing (2007). ISBN 1845883500
- Gurstein, Rochelle. 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 (1998). ISBN 0809016125
- Harrison, Maureen. Obscenity and Pornography Decisions of the United States Supreme Court, Excellent (2000). ISBN 1880780232
- Henderson, Jeffrey The Maculate Muse: Obscene Language in Attic Comedy 1991 Oxford University Press ISBN 0195066855
- McDonald, Nicola. Medieval Obscenities, York Medieval Press (2006). ISBN 1903153182
- O'Toole, L. (1998), Pornocopia: Porn, Sex, Technology and Desire, London, Serpent's Tail. ISBN 1-85242-395-1
- Wheeler, Leigh Anne. Against Obscenity: Reform and the Politics of Womanhood in America, 1873—1935, Johns Hopkins University Press (2007). ISBN 0801886384
External links
- Chapter 71 of Part I of Title 18 of the United States Code, relating to obscenity. Hosted by the Legal Information Institute.
- "A resource for educating the public and reporting violations of internet obscenity laws"
- 2005, Senate Commerce, Science & Transportation Cmte. Hearing on Decency in the Media archive at CSpan. [1]
- Ethical Specticle article on problems with definition of obscenity
- "Under Color of Law: Obscenity vs. First Amendment" Nexus Journal (Chapman University Law School) article on problems with definition of obscenity.
- Truetales.org report on "recent FBI obscenity raids" (2005-10-24)
- Regulation of Obscenity Retrieved October 6, 2007.
- Irving Kristol 1995 Pornography, Obscenity, and the Case for Censorship Retrieved October 6, 2007.
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