Obscenity

Obscenity in United States

Obscenity Definition

In criminal law. Such indecency as is calculated to promote the violation of the law and the general corruption of morals. It may consist in written or spoken words, conduct, pictures, or effigies. It need not be couched in obscene or vulgar terms if the idea conveyed tends to produce indecency. (1)

Introduction to Obscenity

According to the Encyclopedia of the American Constitution, obscenity laws embarrass Alexis de Tocqueville’s claim that there is “hardly a political question in the United States which does not sooner or later turn into a judicial one.” It is not merely that the obscenity question became a serious judicial issue rather much later than sooner.

And the First Amendment

The Supreme Court has had difficulty developing a legal definition for obscenity (speech or action that portrays sex or nudity contrary to societal standards of decency), which in general is speech or action that portrays sex or nudity in a manner contrary to societal standards of decency.

In Miller v. California (1973), the Court held that speech or conduct was obscene if it met all three of the following guidelines:

  • “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient [obsessively sexual] 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 artistic, political, or scientific value.”

The standards for obscenity are the only criteria regarding the First Amendment that vary from community to community, rather than a uniform national standard. For instance, under the First Amendment, flag burning must be allowed in every state. However, Chief Justice Warren Burger wrote in his majority opinion in Miller: “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.”

Speech can be “indecent” without being legally obscene. The Supreme Court has struck down several laws that attempt to regulate indecent but not obscene speech. In Reno v. American Civil Liberties Union (1997), the Court held that the federal Communications Decency Act violated the First Amendment.

Congress had passed the law in 1996 in order to keep children from accessing indecent material via the Internet. But the Court ruled that the law was vague and overbroad, thereby unconstitutionally limiting adults’ free speech. And in Ashcroft v. Free Speech Coalition (2002), the Supreme Court also struck down the Child Pornography Prevention Act of 1996, which made it illegal to produce or possess “virtual” child pornography that is created by computer images but does not involve actual children.

Obscenity, Sexual Behaviour and the Law

Obscenity in relation to Local Government Regulatory Functions

Find out in this American legal Encyclopedia the information on Obscenity in relation to Local Government Regulatory Power and Function (and in the context of local government law).

Resouces

See Also

  • Local Goverment Regulation
  • Local Law Regulation
  • Local Government Power

Obscenity (Censorship)

This section introduces, discusses and describes the basics of obscenity. Then, cross references and a brief overview about Censorship is provided. Finally, the subject of Internet Law in relation with obscenity is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Obscenity (Related Legal Issues)

This section introduces, discusses and describes the basics of obscenity. Then, cross references and a brief overview about Related Legal Issues is provided. Finally, the subject of Communications Law in relation with obscenity is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Obscenity

In Legislation

Obscenity in the U.S. Code: Title 18, Part I, Chapter 71

The current, permanent, in-force federal laws regulating obscenity are compiled in the United States Code under Title 18, Part I, Chapter 71. It constitutes “prima facie” evidence of statutes relating to Crimes and Criminal Law (including obscenity) of the United States. The readers can further narrow their legal research on the topic by chapter and subchapter.

Resources

Notes and References

  1. This definition of Obscenity Is based on the The Cyclopedic Law Dictionary

See Also

  • Legal Topics.
  • Censorship
  • Federal Communications Commission
  • Freedom of Speech
  • Mass Communications Law
  • Feminism
  • Profanity
  • Regulation
  • Sexuality
  • Pornography.

Further Reading (Books)

H. M. Clor, Obscenity and Public Morality (1969, repr. 1985); D. S. Moretti, Obscenity and Pornography (1984). Dworkin, Andrea. 1981. Pornography: Men Possessing Women. New York: Perigee.

Lane, Frederick S. 2000. Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age. New York: Routledge.

MacKinnon, Catharine A., and Andrea Dworkin. 1997. In Harm’s Way: The Pornography Civil Rights Hearings. Cambridge, MA: Harvard University Press.

Strossen, Nadine. 1995. Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights. New York: Scribner.

Robert Jensen

Further Reading (Articles)

When Obscenity Discriminates, Northwestern University Law Review; July 1, 2008; Glazer, Elizabeth M.

The Obscenity Conundrum, Contingent Harms, and Constitutional Consistency, Stanford Law & Policy Review; January 1, 2012; Huppin, Mark Malamuth, Neil

Fighting the Pornification of America by Enforcing Obscenity Laws, Stanford Law & Policy Review; January 1, 2012; Hatch, Orrin G

Obscenity and the World Wide Web, Brigham Young University Law Review; November 1, 2007; Fee, John

Black and White and Banned All Over: Race, Censorship and Obscenity in Postwar Memphis, Journal of Social History; March 22, 2007; Strub, Whitney

Cybercommunity versus Geographical Community Standard for Online Pornography: A Technological Hierarchy in Judging Cyberspace Obscenity, Rutgers Computer & Technology Law Journal; September 22, 1999; Kim, Gyong Ho Paddon, Anna R.

HATCH ARTICLE IN THE STANFORD LAW AND POLICY REVIEW: FIGHTING THE PORNIFICATION OF AMERICA BY ENFORCING OBSCENITY LAWS. States News Service; June 5, 2012

Obscenity Law and Its Consequences in Mid-Nineteenth-Century America, Columbia Journal of Gender and Law; January 1, 2007; Dennis, Donna I.

Freedom of the Press Does Not Extend to Obscenity, The Bill of Rights 1; January 1, 2005

Feds Stepping Up Obscenity Prosecutions, AP Online; May 4, 2005; MARK SHERMAN, Associated Press Writer

Obscenity Prosecutions Criticized, AP Online; May 23, 2000; JESSE J. HOLLAND, Associated Press Writer

Analysis: Obscenity remains in the public’s and the government’s attention, NPR Special; April 14, 2004; ALEX CHADWICK

Obscenity question: revisited, W.Va. pair named in federal case over Internet porn sales, Charleston Daily Mail; April 24, 2003; TOBY COLEMAN

HATCH LEADS SENATORS IN CALLING FOR ENFORCEMENT OF FEDERAL OBSCENITY LAWS. States News Service; April 5, 2011

Obscenity Ban Altered For Some Arts Grants; Rockefeller Foundation Gains NEA Revision, The Washington Post; July 20, 1990; Kim Masters

Video Store Obscenity Trial to Begin Today in Butler County, Ohio. Knight Ridder/Tribune Business News; September 30, 2003

Obscenity ruling’s impact uncertain. The Atlanta Journal-Constitution; February 23, 2006

Public welfare, artistic values, and the state ideology: the analysis of the 2008 Japanese Supreme Court obscenity decision on Robert Mapplethorpe. Pacific Rim Law & Policy Journal; July 1, 2010; Obata, Yuri

PICKETERS TARGET CROSS IN ANTI-OBSCENITY CAMPAIGN, The Beacon News – Aurora (IL); February 5, 1997

Judge dismisses obscenity charges against Abilene, Kan., adult bookstore. The Salina Journal (Salina, KS); September 8, 2005

Further Reading

Obscenity: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Obscenity. This part provides references, in relation to Obscenity, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Obscenity by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Obscenity and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Obscenity or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Obscenity and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Obscenity. Finding these decisions can be challenging. In many cases, researchers about Obscenity should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Obscenity when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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