Difference between revisions of "Obscenity" - New World Encyclopedia

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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 [[norm]]s and [[taboo]]s, which have not been constant or absolute across [[culture]]s and times. As the definition of obscenity varies across cultures, so do the [[law]]s regarding it. Because the concept of obscenity is often ill-defined, and is a subjective judgment, it can be used as a [[politics|political]] tool to try to restrict freedom of expression. Thus, the definition of obscenity can be a [[civil liberties]] issue.
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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 [[religion|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."
  
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==Definition==
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'''Obscenity''' (in [[Latin]] ''obscenus,'' meaning "foul, repulsive, detestable," possibly derived from ''ob caenum,'' literally "from filth") is a term most often used in a [[law|legal]] context to describe expressions ([[word]]s, [[image]]s, actions) that offend the prevalent [[human sexuality|sexual]] [[morality]] of the time.
  
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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 [[profit]]s," 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.
  
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'''''Obscenity''''' (in [[Latin]] ''obscenus'', meaning "foul, repulsive, detestable," possibly derived from ''ob caenum'', literally "from filth"). The term is most often used in a [[law|legal]] context to describe expressions (words, images, actions) that offend the prevalent [[sexual morality]] of the time.
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The definition of obscenity differs from [[culture]] to culture, between [[community|communities]] within a single culture, and also between individuals within those communities. Many cultures have produced [[law]]s 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 [[pornography|pornographic]] material.
  
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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 [[profit]]s," "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.
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== In global culture==
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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.  
  
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The definition of obscenity differs from [[culture]] to culture, between
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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]].
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[[community|communities]] within a single culture, and also between individuals within those communities. Many cultures have produced [[law]]s 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 [[pornography|pornographic]] material.
 
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Because the concept of obscenity is often ill-defined, it can be used as a
 
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[[political]] tool to try to restrict freedom of expression.
 
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Thus, the definition of obscenity can be a [[civil liberties]] issue.
 
  
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== United States obscenity law ==
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=== United States ===
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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 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.
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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.
  
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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.  
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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]].  
  
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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 an''explicit'' 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))
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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 [[homosexuality|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.  
  
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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.
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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. (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…."<ref>''Jacobellis v. Ohio'', 378 U.S. 184, 197 (1964).</ref>
  
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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>
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====Miller test====
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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.
  
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However, in the [[United States]], the 1973 ruling of the [[Supreme Court of the United States]] in [[Miller v. California]] established a three-tiered [[Miller test|test]] to determine what was obscene - and thus not protected, versus what was merely erotic and thus protected by the [[First Amendment]].  
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The Miller test was developed in the 1973 case ''[[Miller v. California]].''<ref>Findlaw.com, [http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/413/15.html Text of the decision and dissents.] Retrieved August 20, 2007.</ref> It has three parts:
  
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Delivering the opinion of the court, Chief Justice [[Warren Burger]] wrote, <blockquote>
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*Whether the average person, applying contemporary [[community]] standards, would find that the work, taken as a whole, appeals to the prurient interest
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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.<ref> ''Miller v. California'', 413 U.S. 15, 24 (1972).</ref>
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*Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law
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</blockquote>
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*Whether the work, taken as a whole, lacks serious [[Literature|literary]], [[art]]istic, [[Politics|political]], and [[Science|scientific]] value
  
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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]].<ref>U.S. Customs and Border Protection Form 6059B, January 2004 [http://www.cbp.gov/xp/cgov/travel/vacation/sample_declaration_form.xml]</ref>
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The work is considered obscene only if all three conditions are satisfied.
  
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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.
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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.
  
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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.
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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>The Ethical Spectacle, [http://www.spectacle.org/296/obscene.html There is no Such Thing as Obscenity.] Retrieved August 20, 2007.</ref>
  
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=== Obscenity v. Indecency===
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=== United Kingdom===
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{{main|Indecency}}
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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>Screen Online, [http://www.screenonline.org.uk/film/id/593568/index.html 1959 Obscene Publications Act.] Retrieved October 5, 2007.</ref>
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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 [[profanity|profane]] word or phrase depends on region, context, and audience.
 
  
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===Non image based obscenity cases in the USA===
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=== Canada ===
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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.   
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Section 163 of the Canadian Criminal Code provides the country's legal definition of "obscenity." Officially termed as
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"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.   
  
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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." 
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Section 163.1 of the current law states that that
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Every one commits an offense who
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:(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
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:(b) makes, prints, publishes, distributes, sells or has in his possession for the purposes of publication, distribution, or circulation a crime comic.
  
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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 [http://www.beautybound.com BeautyBound], run by [[Midori (author)|Midori]], a prominent [[BDSM]] teacher and author on [[Japanese bondage]], have closed down despite not being targeted, due to these risks and legislative burdens.{{Fact|date=February 2007}}
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"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.<ref>Canada Legal Information Institute, [http://www.canlii.org/ca/sta/c-46/sec163.1.html Offences Tending to Corrupt Morals.] Retrieved October 6, 2007.</ref>
  
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{{sectstub}}
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===Asia===
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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.<ref>Monsters and Critics, [http://news.monstersandcritics.com/southasia/news/article_1297350.php/Pakistani_clerics_threaten_government_with_&quotobscenity%22_clampdown Pakistani clerics threaten government with "obscenity" clampdown.] Retrieved August 20, 2007.</ref> In [[India]], for example, some activists have taken to ransacking liquor stores deemed obscene because the [[Qur'an]] bans consumption of [[alcohol]].<ref>BBC News, [http://news.bbc.co.uk/1/hi/world/south_asia/4198768.stm Kashmir Women Fight "Obscenity."] Retrieved August 20, 2007.</ref>
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=== Past standards ===
 
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These standards were once used to determine exactly what was obscene. All have been invalidated, overturned, or superseded by the [[Miller Test]].
 
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* ''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))
 
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* ''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).
 
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* ''[[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
 
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* ''[[Jacobellis v. Ohio|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."
 
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* ''[[Memoirs v. Massachusetts|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))
 
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Under [[Federal Communications Commission|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).
 
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Many historically important works have been described as obscene,
 
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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 [[United Kingdom|UK]] 1950s premier of [[Samuel Beckett]]'s play ''[[Waiting for Godot]]'', and the [[Marquis de Sade]].
 
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=== U.S. activity and court cases dealing with obscenity ===
 
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*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. 
 
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*In '''''[[Reno v. American Civil Liberties Union|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.
 
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*'''''[http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=438&invol=726 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.
 
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*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.
 
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*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.
 
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*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)''
 
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*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 [[Constitutionality|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.
 
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*On or around 2005-10-03, [http://www.red-rose-stories.com 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."'' [http://www.red-rose-stories.com/forum/read.php?6,3910]. 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"'' [http://adult.backwash.com/content.php?id=392]. 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).
 
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* As noted on [http://www.truetales.org/writings/breakingnewsarchives.htm#fbiobscenity Truetales.org]:
 
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:# "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."
 
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:# "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."
 
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* In April 2006, the four main US [[television network]]s 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 [[unconstitutionality|unconstitutional]]. [http://www.washingtonpost.com/wp-dyn/content/article/2006/04/14/AR2006041401575.html]
 
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== United Kingdom obscenity law ==
 
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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.
 
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== Canada obscenity law ==
 
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Section 163 of the Canadian Criminal Code provides the country's legal definition of "obscenity."  Officially termed as
 
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"Offences Tending to Corrupt Morals",[http://laws.justice.gc.ca/en/showdoc/cs/C-46/bo-ga:l_V//en#anchorbo-ga:l_V] 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.[http://www.adnki.com/index_2Level_English.php?cat=Politics&loid=8.0.409897437&par=0]
 
−
 
 
−
==Miller test==
 
−
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</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 [[wiktionary:prurient|prurient]] interest,
 
−
*Whether the work depicts/describes, in a [[wiktionary:patently|patently]] offensive way, sexual conduct or excretory functions <ref>The syllabus of the case mentions only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the majority opinion.</ref> 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.
 
−
 
 
−
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. <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= |accessyear= }}</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=[[Portable Document Format|PDF]] |work= |pages=75-82 |publisher= |accessdate= |accessyear= }}</ref>
 
−
 
 
−
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 <ref>{{cite web|last=Egan |first=Timothy |authorlink= |coauthors= | date=2000-10-23 |url=http://www.nytimes.com/2000/10/23/technology/23PORN.html?ex=1069736400&en=57fa1d3549a43013&ei=5070 |title=Wall Street Meets Pornography |format= |work= |pages= |publisher=[[New York Times]] |accessdate= |accessyear= }}</ref><ref>{{cite web|last=Egan |first=Timothy |authorlink= |coauthors=Gary Ruskin | date=2000-10-24 |url=http://lists.essential.org/pipermail/commercial-alert/2000/000042.html |title=Wall Street Meets Pornography |format= |work= |pages= |publisher= |accessdate= |accessyear= }}</ref>. (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.){{Fact|date=August 2007}}
 
−
 
 
−
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.
 
  
 +
===Africa===
 +
Laws can be similarly oppressive in [[Africa]]. Modern [[music]] has been condemned as obscene by some traditionally minded Africans.<ref>BBC News, [http://news.bbc.co.uk/2/hi/africa/4690050.stm Do you enjoy modern music?] Retrieved August 20, 2007.</ref> Also, some conservatives have labeled [[homosexuality]] an obscenity and actively persecute it in Africa.<ref>ILGA, [http://www.ilga.org/print.asp?LanguageID=1&FileCategoryID=1&FileID=778&ZoneID=2& End Homophobia in Africa.] 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. The major [[sin]]s 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==
 
==Notes==
Line 142: Line 72:
  
 
==References==
 
==References==
−
*Henderson, Jeffrey ''[http://books.google.com/books?id=aBsR2BEuAq0C 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.[http://library.findlaw.com/2003/May/15/132747.html]
+
*Bahn, Paul. 2007. ''Ancient Obscenities: Or Things You Shouldn't Know About the History of Mankind!''. Nonsuch Publishing. ISBN 1845883500
−
*Slater, W. J. review of ''[http://links.jstor.org/sici?sici=0031-8299%28197623%2930%3A3%3C291%3ATMMOLI%3E2.0.CO%3B2-Z&size=LARGE 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
+
*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
−
*O'Toole, L. (1998), Pornocopia: Porn, Sex, Technology and Desire, London, Serpent's Tail. ISBN 1-85242-395-1
+
*Harrison, Maureen. 2000. ''Obscenity and Pornography Decisions of the United States Supreme Court.'' ISBN 1880780232
−
*[http://www.melonfarmers.co.uk/index.htm The Melon Farmers (UK)]
+
*Henderson, Jeffrey. 1991. [http://books.google.com/books?id=aBsR2BEuAq0C ''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
  
 
==External links==
 
==External links==
−
* [http://www4.law.cornell.edu/uscode/18/pIch71.html Chapter 71] of Part I of Title 18 of the [[United States Code]], relating to obscenity.  Hosted by the Legal Information Institute.
+
All links retrieved November 17, 2022.
−
* [http://www.obscenitycrimes.org "A resource for educating the public and reporting violations of internet obscenity laws"]
+
*[http://www.spectacle.org/296/obscene.html There is no Such Thing as Obscenity] ''Ethical Specticle'' February 1996
−
* '''2005, Senate Commerce, Science & Transportation Cmte. Hearing on Decency in the Media''' archive at CSpan. [http://inside.c-spanarchives.org:8080/cspan/cspan.csp?command=dprogram&record=190192705]
 
−
* [http://www.spectacle.org/296/obscene.html Ethical Specticle] article on problems with definition of obscenity
 
−
* [http://www.nexusjournal.org/2005obscenity/75-82.pdf "Under Color of Law: Obscenity vs. First Amendment"] [http://www.nexusjournal.org Nexus Journal] ([[Chapman University]] Law School) article on problems with definition of obscenity.
 
−
* [http://www.truetales.org/writings/breakingnewsarchives.htm#fbiobscenity Truetales.org report on "recent FBI obscenity raids"] (2005-10-24)
 
−
 
 
  
 
{{Credits|Obscenity|132670763|Miller_test|151371880|}}
 
{{Credits|Obscenity|132670763|Miller_test|151371880|}}

Latest revision as of 19:55, 17 November 2022

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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."

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
ISBN links support NWE through referral fees

  • 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

External links

All links retrieved November 17, 2022.

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