Obscenity Law: Does It Cover Slurs And Hate Speech?

Obscenity laws in the United States are meant to regulate and censor obscene speech and material that is not protected by the First Amendment's Freedom of Speech and Expression protections. While the definition of obscenity is ambiguous and subjective, it is generally understood to include lewd or extremely offensive words or pictures in public. Obscenity laws have been applied to various forms of media, including images, films, and textual works, and have raised questions about freedom of speech and press. The determination of whether something is obscene is made by federal and state courts using a three-part test known as the Miller test, which considers community standards, the depiction of sexual conduct, and the lack of literary, artistic, political, or scientific value. In the context of racial slurs, a Pennsylvania case concluded that racial slurs did not meet the statutory definition of obscene under a disorderly conduct statute, as they did not appeal to a prurient interest in sex. This case highlights the complexities and challenges in defining and applying obscenity laws, especially in situations involving offensive language or hate speech.

The Miller test for obscenity

In the United States, the Miller test, also known as the three-prong obscenity test, determines whether speech or expression can be labelled obscene and is therefore not protected by the First Amendment to the United States Constitution. The Miller test was developed in the 1973 case of Miller v. California and has three parts:

• Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interests. Prurient interests refer to an excessive sexual interest.
• Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions as specifically defined by applicable state law.
• Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

For a work to be considered obscene, all three conditions must be satisfied. The first two prongs of the test are held to the standards of the community, while the third prong is based on whether a reasonable person would find value in the material in its entirety.

The Miller test replaced the previous Hicklin test, which defined obscenity based on what more sensitive persons in the community might be offended by. The Miller test is considered an improvement as it allows for community standards rather than a national standard, recognising that different communities may have different standards for what is considered offensive.

It is important to note that obscenity laws are meant to regulate and censor obscene speech and material. However, defining obscenity in a clear and objective manner is challenging. The Miller test has faced criticism, with Justice Douglas expressing concern that it may lead to greater censorship and make it easier to suppress speech and expression. The test's allowance for community standards and demand for "serious" value have been cited as potential contributors to increased censorship.

Racial slurs and obscenity

Obscenity laws in the US are meant to regulate and censor obscene speech and material. However, these laws do not apply to racial slurs. A recent Pennsylvania case challenged the use of racial slurs under a disorderly conduct statute, but the court concluded that the slurs did not meet the statutory definition of "obscene". The court defined "obscene" speech as that which appeals to a prurient interest in sex, and racial slurs do not fall under this category.

Racial slurs are derogatory terms used to insult and demean individuals based on their race, ethnicity, or nationality. They are designed to dehumanize and degrade individuals, perpetuating stereotypes and promoting discrimination. While they may not be legally considered obscene, racial slurs are harmful and offensive. They contribute to a culture of racism and xenophobia, impacting the mental health and well-being of those targeted.

News organizations and media outlets have varying policies on reporting racial slurs. Some choose to use euphemisms such as "an anti-gay slur" or "the N-word", while others argue that direct quotations are necessary for transparency and accountability. However, the use of racial slurs in media can perpetuate their impact and reach a wider audience, normalizing their usage and potentially causing further harm.

The legal system's approach to racial slurs highlights the complex nature of free speech and the challenges of defining obscenity. While racial slurs may not be legally obscene, they are socially and morally unacceptable due to their harmful impact on individuals and communities. The line between protecting free speech and regulating offensive language is often blurred, and it is essential to consider the context, intent, and impact of such speech when determining its legality and ethical implications.

As societal attitudes evolve, the understanding of obscenity and its legal implications may also change. What was once considered acceptable may now be deemed offensive and harmful. It is crucial to continually reevaluate these definitions and their applicability to ensure that legal frameworks effectively address issues of hate speech and discrimination.

The First Amendment and obscenity

The First Amendment to the US Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Despite the First Amendment's protection of free speech, obscenity is a category of speech that is not protected by the First Amendment. Obscenity laws are concerned with prohibiting lewd or extremely offensive words or pictures in public. The US Supreme Court has ruled that obscene material, which usually refers to videos, deals with a shameful or morbid interest in sex, depicts sexual matter in a patently offensive way, and has no serious literary, artistic, political, or scientific value.

The Supreme Court first ruled on obscenity in Roth v. United States (1957), where it upheld Samuel Roth's conviction for violating a federal obscenity law for mailing obscene materials. The court created the following test for obscenity: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." The court defined "prurient interest" as "material having a tendency to excite lustful thoughts" and "having morbid or lascivious longings."

However, the Supreme Court and lower courts struggled to use this definition to determine the line between protected speech and unprotected obscenity. In Jacobellis v. Ohio (1964), Justice Potter Stewart famously said, "I shall not today attempt further to define [obscenity]... but I know it when I see it."

In Miller v. California (1973), the court adopted a different test for obscenity, which is still used today. Under the Miller test, material is obscene if it meets all three of the following criteria:

• The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
• The work depicts or describes, in a clearly offensive way, sexual conduct as defined by the applicable state law.
• The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The Miller test for obscenity is used by federal and state courts and all fifty states have individual laws controlling obscene material. However, critics argue that obscenity is too subjective and that it doesn't make sense to rely on "contemporary community standards" when material is available online from anywhere.

Child pornography and obscenity laws

Obscenity laws in the United States are concerned with regulating and censoring "obscene" speech, material, and conduct. While the First Amendment protects freedom of speech and expression, obscenity is a category of speech that is not protected by these rights. The U.S. Supreme Court has ruled that transmitting obscenity and child pornography, whether via the internet or other means, is illegal under federal law for both adults and juveniles.

Child pornography is a form of obscenity that is specifically prohibited by federal law. Child pornography refers to images, films, or writings that depict sexually explicit activities involving a child. This includes visual representations, such as drawings, cartoons, or paintings, that appear to depict minors engaged in sexual activity. The production, distribution, and possession of child pornography are all illegal under federal law. Offenders convicted of child pornography and obscenity violations face severe statutory penalties, including fines and imprisonment, and may also be required to register as sex offenders.

The Miller test, established by the U.S. Supreme Court in the case of Miller v. California, is used to determine whether material is obscene. The test includes three criteria:

• Whether the average person, applying contemporary adult community standards, finds that the material, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);
• Whether the average person, applying contemporary adult community standards, finds that the material depicts or describes sexual conduct in a clearly offensive way as defined by the applicable state law;
• Whether the work, when considered in its entirety, “lacks serious literary, artistic, political, or scientific value.”

Child pornography violates all three parts of the Miller test. The Supreme Court has limited the application of the Miller test for child pornography to sexual conduct as "adequately defined by the applicable state law, as written or authoritatively construed" in addition to the element of scienter.

Federal law prohibits the distribution of obscene matter to minors. Any attempt to transfer such material to a minor under the age of 16, including over the internet, is punishable under federal law. It is also illegal to use misleading website domain names or images with the intent to deceive a minor into viewing harmful or obscene material.

While the focus of obscenity laws is typically on visual depictions, spoken words, and written text can also be considered obscene and subject to prosecution. The determination of whether specific language or speech constitutes obscenity can be complex and subject to interpretation by courts.

The role of the Supreme Court in obscenity law

The Miller test was a significant development in obscenity law, providing a comprehensive framework for determining obscene content that could be banned by government authorities. It replaced earlier, stricter definitions of obscenity, such as the Roth test, which defined obscenity as material with a "dominant theme taken as a whole [that] appeals to the prurient interest" to the "average person." The Roth test was further refined in Memoirs v. Massachusetts, which added the criterion of material being "utterly without redeeming social value."

The Supreme Court's role in Miller v. California was to resolve conflicting interpretations of obscenity law and provide a clearer standard. The Court's decision to grant certiorari in this case reflected its intention to revisit and clarify previous obscenity precedents. The resulting Miller test shifted the focus from community standards to a more objective assessment of the content's value. This test has since been applied by federal and state courts to evaluate obscenity and has limited the power of states to ban certain types of content.

The Supreme Court has also played a role in defining the scope of obscenity laws, particularly in relation to child pornography and the internet. In New York v. Ferber, the Court applied the Miller test to child pornography, deeming it unprotected by the First Amendment due to its lack of redeeming social value. However, the Court has recognised the challenges of enforcing obscenity laws online, as evident in cases like Ashcroft v. Free Speech Coalition and Ashcroft v. ACLU, where sections of the Child Pornography Prevention Act and the Child Online Protection Act were struck down as unconstitutional.

In conclusion, the Supreme Court's role in obscenity law has been pivotal in shaping the legal understanding of obscenity and setting boundaries for state regulation. Through landmark cases like Miller v. California, the Court has provided a test that balances free speech protections with the need to restrict obscene content. The Court's ongoing interpretation and refinement of this test continue to shape the application of obscenity laws across the nation.

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