Obscenity

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. 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.

United States obscenity law

The United States has constitutional protection for freedom of speech, which 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 publically accessible, though has at times encompassed other subject matters such as spoken and written language that can be publically transmitted and received by the general public.

The legal term of obscenity is usually denoted to classify 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, are usually separated 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 currently, images of mere human nudity and single couple heterosexual vaginal-only penetration are listed as protected speech, while images showing anal and homosexual penetation are presently 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, vs. that which is legally obscene (and thus not covered by 1st Amendment protection), appears to be subjective to the local federal districts inside the United States and the local moral standards at the time.

In fact, federal obscenity law in the U.S. is highly unusual in that — not only is there no uniform national standard, but rather, there is anexplicit legal precedent (the "Miller test," below) 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 . . ."

However, in the United States, the 1973 ruling of the Supreme Court of the United States in Miller v. California established a three-tiered test to determine what was obscene - and thus not protected, versus what was merely erotic and thus protected by the First Amendment.

Delivering the opinion of the court, Chief Justice Warren Burger wrote,

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.

In U.S. legal texts, therefore, the question of "obscenity" presently always refers to this "Miller test obscenity." The Supreme Court has ruled that it is constitutional to legally limit the sale, transport for personal use (U.S. v. Extreme Associates) or other transmission of obscenity, but that it is unconstitutional to pass laws concerning the personal possession of obscenity per se. Federal obscenity laws at present apply to inter-state and foreign obscenity issues such as distribution; intra-state issues are for the most part still governed by state law. "Obscene articles... are generally prohibited entry" to the United States by U.S. Customs and Border Protection.

At present, the only legally protected areas of explicit sexual areas of commercial pornography are 1) "mere nudity" as upheld in "Jenkins v. Georgia , 418 U.S. 153 (1974)" whereby the film, "Carnal Knowledge" is deemed not to be obscene under the constitutional standards announced in Miller and appellant's conviction therefore contravened the First and Fourteenth Amendments. As declared by the judge at trial "The film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards)." This was upheld time and again in later cases including "Erznoznik v. City of Jacksonville FL, 422 U.S. 205 (1975)" whereby the city of Jackonvill stated such film showing was a punishable offense for a drive-in movie theater to exhibit films containing nudity, when the screen is visible from a public street or place. The law was determined to be invalid as it was an infringement of First Amendment rights of the movie producer and theatre owners and 2) single male to female vaginal-only penetration that does NOT show the actual ejaculation of sperm, sometimes referred to as "soft-core" pornography whereby the sexual act and its fulfillment are merely implied to happen rather than is explicitly shown.

In June 2006, the U.S. Federal government in the district of Arizona brought a case against JM Productions of Chatsworth, Calif. in order to classify commercial pornography that specifically shows actual sperm being ejaculated as obscene. The four films that were the subject of the case are entitled "American Bukkake 13," "Gag Factor 15," "Gag Factor 18" and "Filthy Things 6." The case also includes charges of distribution of obscene material (a criminal act under 18 USC § 1465 - "Transportation of obscene matters for sale or distribution") against Five Star DVD for the extra-state commercial distribution of JM Productions' films in question. At this time, the case remains in the pre-trial phase.

Obscenity v. Indecency

The differentiation between indecent and obscene material is a particularly difficult one, and a contentious First Amendment issue that has not fully been settled. Similarly, the level of offense (if any) generated by a profane word or phrase depends on region, context, and audience.

Non image based obscenity cases in the USA

While most of the cases of obscenity in the United States are limited to actual images, there have been many other cases whereby the mere thought of acts that are considered unacceptable for consumption by the general public have been deemed to be obscene and thus illegal, despite having no pictures at all in such determined "obscene" material.

The classification of "obscene" and thus illegal for production and distribution has been judged on printed text only stories starting with "Dunlop v. U.S., 165 U.S. 486 (1897)" which upheld a conviction for mailing and delivery of a newspaper called the 'Chicago Dispatch,' containing "obscene, lewd, lascivious, and indecent materials," which was later upheld in both "A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Mass., 383 U.S. 413 (1966)" whereby the "Fanny Hill" written by John Cleland about 1760, was judged to be obscene in a proceeding that put on the book itself on trial rather than its publisher and "Kaplan v. California , 413 U.S. 115 (1973)" whereby the court most famously determined that "Obscene material in book form is not entitled to any First Amendment protection merely because it has no pictorial content."

In September 2005 a further attack on the printed text came as an FBI "Anti-Porn Squad" was formed, which has initially targeted for prosecution websites such as Red Rose Stories (www.red-rose-stories.com, now defunct), one of many sites providing text-only fantasy stories. Other sites such as BeautyBound, run by Midori, a prominent BDSM teacher and author on Japanese bondage, have closed down despite not being targeted, due to these risks and legislative burdens.^{[citation needed]}

Past standards

These standards were once used to determine exactly what was obscene. All have been invalidated, overturned, or superseded by the Miller Test.

• Hicklin test: the effect of isolated passages upon the most susceptible persons. (British common law, cited in Regina v. Hicklin, 1868. LR 3 QB 360 - overturned when Michigan tried to outlaw all printed matter that would 'corrupt the morals of youth' in Butler v. State of Michigan 352 U.S. 380 (1957))
• Wepplo: If material has a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires. (People v. Wepplo, 78 Cal.App.2d Supp. 959, 178 P.2d 853).
• Roth Standard: "Whether to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest." Roth v. United States 354 U.S. 476 (1957) - overturned by Miller
• Roth-Jacobellis: "community standards" applicable to an obscenity are national, not local standards. Material is "utterly without redeeming social importance." Jacobellis v. Ohio 378 US 184 (1964) - famous quote: "I shall not today attempt further to define [hardcore pornography] ...But I know it when I see it."
• Roth-Jacobellis-Memoirs Test: Adds that the material possesses "not a modicum of social value." (A Book Named John Cleland's Memoirs of a Woman of Pleasure v. Attorney General of Massachusetts, 383 U.S. 413 (1966))

Under FCC rules and federal law, radio stations and over-the-air television channels cannot air obscene material at any time and cannot air indecent material between 6 a.m. and 10 p.m.: language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities (indecency is less intense than obscenity).

Many historically important works have been described as obscene, or prosecuted under obscenity laws. For example, the works of Charles-Pierre Baudelaire, Lenny Bruce, William S. Burroughs, James Joyce, D. H. Lawrence, Henry Miller, the words "piss" and "erection" in the UK 1950s premier of Samuel Beckett's play Waiting for Godot, and the Marquis de Sade.

U.S. activity and court cases dealing with obscenity

• In Miller v. California, the Supreme Court ruled that materials were obscene if they appealed, “to a prurient interest,” showed “patently offensive sexual conduct” that was specifically defined by a state obscenity law, and “lacked serious artistic, literary, political, or scientific value.” Decisions regarding whether material was obscene should be based on local, not national, standards.

• In Reno v. ACLU, the Supreme Court struck down indecency laws applying to the Internet, which casts serious doubt on Congress's ability to pass such wide-ranging regulation banning "indecent" speech on communications technologies that enter the home.

• FCC v. Pacifica is better known as the landmark “seven dirty words” case. In that 1978 ruling, the Justices found that only “repetitive and frequent” use of the words in a time or place when a minor could hear can be punished.

• In 1998 a jury in St. Tammany Parish, New Orleans convicted Christine Brenan of "promoting obscene devices." They gave her a two-year suspended sentence, five years of probation and a fine of $1,500. The 1st Circuit Court of Appeals later struck down the law, ruling it unconstitutionally vague.

• The 1999 Law and Government of Alabama (Ala. Code. § 13A-12-200.1) made it "unlawful to produce, distribute or otherwise sell sexual devices that are marketed primarily for the stimulation of human genital organs." Alabama claimed that these products were obscene, and that there was "no fundamental right to purchase a product to use in pursuit of having an orgasm. The ACLU challenged the statute, which was overturned in 2002. A federal judge reinstated the law in 2004.

• In 2000 a jury in Provo, UT found Larry Peterman not guilty on obscenity charges, as the defense showed that residents of the town were disproportionately large consumers of the very materials Peterman was selling. (See Provo, UT)

• On 2005-01-20, in United States v. Extreme Associates, U.S. District Judge Gary Lancaster of western Pennsylvania initially ruled that the statutes against the obscenity laws were unconstitutionally vague and thus dismissed the case. However Judge Lancaster's decision was overturned on Department of Justice's appeal to the United States Court of Appeals for the Third Circuit, which reinstated federal obscenity charges against Extreme Associates stating that Judge Lancaster overstepped his authority. The Third Circuit Court ruled that what was protected was "a right to a protective zone ensuring the freedom of a man’s inner life", and noting a previous ruling in which higher courts "declined to equate the privacy of the home relied on in Stanley with a 'zone of privacy' that follows a distributor or a consumer of obscene materials wherever he goes." It also ruled that the lower court erred in attempting to overturn a Supreme Court ruling, which was reserved for the Supreme Court itself to do. The Court of Appeals denied Extreme Associates' constitutional challenge and held that the federal statutes regulating the distribution of obscenity do not violate any constitutional right to privacy. The case has been remanded back to Lancaster's court but as a jury decision not a bench decision (judge only decision) whereby the jury could make the same decision and rule that the law itself is flawed and should be removed, rather than just Extreme Associates and its products merely does not meet the stated criteria of being "obscene." The case is set to begin actual trial commencement in the fall to winter portion of 2007.

• On or around 2005-10-03, Red Rose Stories, a website providing a wide range of everyday and more extreme erotic stories , was raided in the owner's absence by the FBI's recently founded 'Anti-Porn Squad'. Until this time, written stories alone had not been a target for any obscenity case. Rose posted an open letter on the website stating that "I am being charged with 'OBSCENITIES' and face a minimum term of 3 years in a federal prison. Our stories are NOT protected speech. Please, please, be careful out there. When it comes to free speech SEX STORIES are NOT covered. The ONLY legal sex stories are those that involve a man and a woman, consenting to MISSIONARY POSITION SEX, in a dark room ... They are trying to say fantasy stories are illegal." [2]. Also, "it appears the Porn Squad has been told that the best possibility of prosecution includes golden showers, scat ... and BDSM along with other fringe fetishes... [the US] government is not targeting kiddie porn only" [3]. No indictment or official prosecution has yet been announced, however the case is seen as a potential landmark in US approaches to sexually explicit material. It seems possible that the basis of any legal case would be inter-state distribution (via the internet) of obscene material (but see Extreme Associates, above).

• As noted on Truetales.org:

1. "Beginning in late September 2005, a number of Websites containing SM material chose to delete that material or shut down, in response to the information in the Washington Post article. Among the Websites to censor themselves have been atruerose.com, kinkygurl.com, leatherquest.com, suicidegirls.com, UnderMySkirt.org, and three related Websites, houseofdesade.org, grandpadesade.com, and realbdsm.com. Midori's BeautyBound.com shut down as well, because of other U.S. legislation against erotic material."
2. "According to various media sources, on 2005-10-07 the Webmaster of Now That's Fucked Up, a Website for user-submitted amateur photos, was arrested for obscenity... after his Website received national attention for permitting U.S. soldiers overseas to post pictures showing war dead. There is no indication that the FBI was involved in this case."

• In April 2006, the four main US television networks and some 800 affiliated stations, sued the Federal Communications Commission which had recently increased in great measure both the strictness of its obscenity rules, and the penalties associated with sexual language. The networks claim that the FCC outstepped both its authority and precedent, that the old rules were drafted for a time when expectations were tighter and choice more limited, that they are hindered by rules not applicable to the hundreds of other stations available now, and that the changes were unconstitutional. [4]

United Kingdom obscenity law

The Obscene Publications Act basically determines the criteria for what material is allowed to be publically accessed and distributed within the member countries of the United Kingdom.

Canada obscenity law

Section 163 of the Canadian Criminal Code provides the country's legal definition of "obscenity." Officially termed as "Offences Tending to Corrupt Morals",[5] 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.

The current law states

163. (1) 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.

Different Countries

Various 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 locale populations. The set of these countries permissable content vary widely accordingly with some having extreme punishment up to and including execution for members who violate their restrictions, as in the case of Iran where the current laws against pornography now include death sentences for those convicted of producing pornography.[6]

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. 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 third condition is also known as the (S)LAPS test ([Serious] Literary, Artistic, Political, Scientific). 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.

Because it allows for community standards and demands "serious" value, some worried that this test would make it easier to suppress speech and expression. They pointed out that it replaced a stricter test asking whether the speech or expression was "utterly without redeeming social value"—a much tougher standard than "serious" value. As used, however, the test generally makes it difficult to outlaw any form of expression. Much pornography has been successfully argued to have some artistic or literary value.

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.

In practice, pornography showing genitalia and sexual acts is not de 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, in Utah County, Utah, a region which had often boasted of being one of the most conservative areas in the US. Researchers had shown that guests at the local Marriott Hotel were disproportionately large consumers of pay-per-view pornographic material, obtaining far more material that way than the store was distributing . (Needless to say, guests in a hotel generally are not representative of full-time residents in the city where the hotel is located: Las Vegas, commonly called "Sin City," has many Evangelical churches, whose members may disapprove of the people whose gambling and other "sinful" behavior make their city prosperous.)^{[citation needed]}

The advent of the Internet has made this definition more difficult to maintain: 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. The pending case United States of America v. Extreme Associates includes some content delivered purely over the Internet and may clarify the situation.

References

ISBN links support NWE through referral fees

• Henderson, Jeffrey The Maculate Muse: Obscene Language in Attic Comedy 1991 Oxford University Press ISBN 0195066855
• Judith Silver of Coollawyer.com, "Movie Day at the Supreme Court or 'I Know It When I See It': A History of the Definition of Obscenity," on FindLaw.com.[7]
• Slater, W. J. review of The Maculate Muse: Obscene Language in Attic Comedy by Jeffrey Henderson. Phoenix, Vol. 30, No. 3 (Autumn, 1976), pp. 291-293 doi:10.2307/1087300
• O'Toole, L. (1998), Pornocopia: Porn, Sex, Technology and Desire, London, Serpent's Tail. ISBN 1-85242-395-1
• The Melon Farmers (UK)

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. [8]
• 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)

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