Obscenity


An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. Generally, the term can be used to indicate strong moral repugnance and outrage in expressions such as "obscene profits" and "the obscenity of war". As a legal term, it usually refers to descriptions and depictions of people engaged in sexual and excretory activity.

United States obscenity law

In the United States, issues of obscenity raise issues of limitations on the freedom of speech and of the press, which are otherwise protected by the First Amendment to the U.S. Constitution.
Federal obscenity law in the U.S. is unusual in that there is no uniform national standard. 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... ut I know it when I see it...." In the U.S., the 1973 ruling of the U.S. Supreme Court 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: 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 or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Non image-based obscenity cases in the U.S.

While most recent obscenity cases in the U.S. have revolved around images and films, the first obscenity cases dealt with textual works.
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, 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 several cases. One of these was "A Book Named John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Massachusetts, "383 U.S. 413 " wherein the book "Fanny Hill", written by John Cleland, was judged to be obscene in a proceeding that put the book itself on trial rather than its publisher. Another was Kaplan v. California, 413 U.S. 115 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 2005, the U.S. Department of Justice formed the Obscenity Prosecution Task Force in a push to prosecute obscenity cases. Red Rose Stories, a site dedicated to text-only fantasy stories, became one of many sites targeted by the FBI for shutdown. The government alleged that Red Rose Stories contained depictions of child rape. The publisher pleaded guilty. Extreme pornographer Max Hardcore served 30 months of a 46-month prison sentence for obscenity.
Many U.S. states have had bans on the sale of sex toys, regulating them as obscene devices. Some states have seen their sex toy bans ruled unconstitutional in the courts. That ruling leaves only Mississippi, Alabama, and Virginia with current bans on the sale of obscene devices.
Literature communicating contraceptive information was prohibited by several states. The last such prohibition, in Connecticut, was overturned judicially in 1965.

Key U.S. court cases on obscenity

  • In 1957, two associates of acclaimed poet Allen Ginsberg were arrested and jailed for selling his book "Howl and Other Poems" to undercover police officers at a beatnik bookstore in San Francisco. Eventually the California Supreme Court declared the literature to be of "redeeming social value" and therefore not classifiable as "obscene". Because the poem "Howl" contains pornographic slang and overt references to drugs and homosexuality, the poem was frequently censored and confiscated; however, it remains a landmark case.
  • FCC v. Pacifica Foundation, better known as the landmark "seven dirty words" case. In that ruling, the Court found that only "repetitive and frequent" use of the words in a time or place when a minor could hear, can be punished.
  • In State v. Henry, the Oregon Supreme Court ruled that the Oregon state law that criminalized obscenity was an unconstitutional restriction of free speech under the free speech provision of the Oregon Constitution, with the ruling making Oregon the "first state in the nation to abolish the offense of obscenity".
In Cohen v. California, 403 U.S. 15, the U.S. Supreme Court ruled that the word "fuck", although almost universally considered obscene when used to describe sexual intercourse, is speech-protected by the First Amendment to the United States Constitution when used to express a political belief. On 26 April 1968, Paul Robert Cohen, then 19 years old, donned a jacket bearing the words "Fuck the Draft" while visiting the Los Angeles Courthouse to testify as a defense witness in a court hearing. Although Cohen removed the jacket before entering the courtroom, he had been observed wearing it in the courthouse corridor by a court officer. When Cohen left the courtroom, the officer arrested him for disturbing the peace. Cohen defended his attire as being an expression of disapproval of the war in Vietnam. Nonetheless, he was convicted of "maliciously and willfully disturbing the peace" and sentenced to 30 days in jail. The conviction was eventually upheld by the Supreme Court of California but reversed by the Supreme Court. In a 5–4 decision, Justice Harlan wrote for the Court that Cohen's conviction was based solely on speech and was protected by the First Amendment. In a dissenting opinion, Justice Blackmun countered that Cohen's wearing of the jacket in the courthouse was not speech but conduct amounting to an "absurd and immature antic".
  • In Reno v. ACLU, the Supreme Court struck down indecency laws applying to the Internet.
  • In Miller v. California – the currently-binding Supreme Court precedent on the issue –, the Court ruled 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.
Standards superseded by the Miller Test include:
  • Wepplo : If material has a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires..
  • Hicklin test : the effect of isolated passages upon the most susceptible persons.
  • 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 – 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 – a famous quote from this case saying: "I shall not today attempt further to define ... But I know it when I see it."
  • Roth-Jacobellis-Memoirs Test : Adds that the material possesses "not a modicum of social value".
FCC rules and federal law govern obscenity in broadcast media. Many historically important works have been described as obscene or prosecuted under obscenity laws, including the works of Charles Baudelaire, Lenny Bruce, William S. Burroughs, Allen Ginsberg, James Joyce, D. H. Lawrence, Henry Miller, Samuel Beckett, and the Marquis de Sade.

Criticism

Obscenity law has been criticized in the following areas:
  • Federal law forbids obscenity in certain contexts ; however, the law does not define the term.
  • The U.S. Supreme Court similarly has had difficulty defining the term. In Miller v. California, the court defers definition to two hypothetical entities, "contemporary community standards" and "hypothetical reasonable persons".
  • The courts and the legislature have had similar problems defining this term because it is paradoxical, and thus impossible to define.
  • Because the term "obscenity" is not defined by either the statutes or the case law, this law does not satisfy the vagueness doctrine, which states that people must clearly be informed as to the prohibited behavior.
  • Because the determination of what is obscene is ultimately a personal preference, alleged violations of obscenity law are not actionable.
  • Because no actual injury occurs when a mere preference is violated, alleged violations of obscenity law are not actionable.
Obscenity laws remain enforceable under Miller despite these criticisms. Some states have passed laws mandating censorship in schools, universities, and libraries even if they are not receiving government aid that would require censorship in these institutions. These include Arizona, Kentucky, Michigan, Minnesota, South Carolina, and Tennessee. Twenty more states were considering such legislation in 2001–2002.

Child pornography

Child pornography refers to images or films ; as such, visual child pornography is a record of child sexual abuse. Abuse of the child occurs during the sexual acts that are recorded in the production of child pornography, and several professors of psychology state that memories of the abuse are maintained as long as visual records exist, are accessed, and are "exploited perversely". Some countries also bans writings—that depict sexually explicit activities involving a child.
In New York v. Ferber,, the U.S. Supreme Court ruled that child pornography need not be legally obscene in order to be outlawed. The Court ruled that in contrast to the types of images considered in Miller, images that depicted underlying harm to children need not appeal to "the prurient interest of the average person", portray sexual conduct in "a patently offensive manner", nor be considered holistically, in order to be proscribed. Another difference between U.S. constitutional law concerning obscenity and that governing child pornography is that the Supreme Court ruled in Stanley v. Georgia,, that possession of obscene material could not be criminalized, while in Osborne v. Ohio,, the high court ruled that possession of child pornography could be criminalized. The reason was that the motive for criminalizing child pornography possession was "to destroy a market for the exploitative use of children" rather than to prevent the material from poisoning the minds of its viewers. The three dissenting justices in that case argued, "While the sexual exploitation of children is undoubtedly a serious problem, Ohio may employ other weapons to combat it."