Cameron Miranda
Obscenity laws in the United States deal with the regulation or suppression of what is considered obscenity and therefore not protected by the First Amendment to the United States Constitution. The First Amendment protects pornography, which is defined as any erotic material. However, the Supreme Court has held that the First Amendment does not protect two types of pornography: obscenity and child pornography. Federal law prohibits the mailing of obscenity, as well as its transport or receipt in interstate or foreign commerce. The Miller test, a three-part test, is used by federal and state courts to determine whether a work is obscene.
| Characteristics | Values |
|---|---|
| Definition | Obscenity is a category of speech that is not protected by the First Amendment's Freedom of Speech and Expression protections. |
| Prohibited content | Lewd, or extremely offensive words or pictures in public. |
| Applicable laws | All fifty states have individual laws controlling obscene material. |
| Determining obscenity | The Miller test is used by federal and state courts to determine if given material is obscene. |
| Miller test criteria | 1. Whether the average person sees the material as having/encouraging excessive sexual interest based on community standards. 2. Whether the material depicts or describes sexual conduct in a clearly offensive way as defined by the applicable state law. 3. Whether the work, when considered in its entirety, “lacks serious literary, artistic, political, or scientific value.”. |
| Examples of obscene content | Child pornography, visual representations that appear to depict minors engaged in sexual activity, material dealing with birth control and abortion. |
| Penalties | Fines and imprisonment. |
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What You'll Learn
The Miller test
First, whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to prurient interest. This first prong has been said to require the impossible: "they require the audience to be turned on and grossed out at the same time".
Second, whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by the applicable state law.
Third, whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. This third prong has been clarified by the Supreme Court as an issue of fact for the jury to determine, applying contemporary community standards.
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Federal and state laws
Federal Laws:
The federal government has enacted several laws to address obscenity, including:
- Federal statutes ban obscenity and child pornography produced using real children, which are not protected by the First Amendment, even when the content is not obscene.
- Federal law prohibits the mailing, transportation, or receipt of obscene material across state lines or internationally.
- Federal law also bans the broadcast of "indecent" material during specific hours, although cable and satellite transmissions are exempt from this restriction.
- Distribution of obscene material to minors is strictly prohibited by federal law, and offenders face harsher penalties than in cases involving only adults.
- Sections 1464 and 1468 of Title 18, United States Code, specifically prohibit the broadcast or distribution of obscene content via radio, cable, or subscription television.
- Section 1466A of Title 18, United States Code, addresses visual representations that appear to depict minors engaged in sexually explicit conduct and are deemed obscene.
- Federal law prohibits the production and distribution of obscene material, including through the use of interactive computer services and the Internet.
State Laws:
While federal laws provide a broad framework, each state has its own laws governing obscenity, and these laws can vary significantly:
- All fifty states have individual laws controlling obscene material, and state courts use the Miller test to evaluate obscenity.
- State laws operate within their respective jurisdictions, and some states may have more restrictive definitions of obscenity than others.
- States have the authority to prohibit the sale and distribution of obscene materials within their borders, as seen in the early efforts of Anthony Comstock, who advocated for anti-obscenity statutes.
- State laws may also address specific forms of media or content, such as the California law that banned the movie "Lady Chatterley's Lover" due to its sympathetic portrayal of adultery.
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Child pornography
The Miller test, a three-part test established by the Supreme Court, is used to determine whether a work is obscene. Child pornography violates all three parts of the Miller test, and making or distributing such material is a crime. The Miller test asks:
- Whether the average person, applying contemporary community standards, would find that the work, as a whole, appeals to prurient interest;
- Whether the work depicts or describes, in a patently offensive way, sexual conduct as defined by the relevant state law;
- Whether the work, as a whole, lacks serious literary, artistic, political, or scientific value.
The first two prongs of the Miller test are issues of fact for the jury to determine, applying contemporary community standards. The third prong asks whether a reasonable person would find serious value in the material, not whether an ordinary community member would.
Section 1466A of Title 18, United States Code, makes it illegal for any person to knowingly produce, distribute, receive, or possess visual representations that depict minors engaged in sexually explicit conduct and are deemed obscene. This statute offers an alternative two-pronged test for obscenity with a lower threshold than the Miller test. The matter involving minors can be deemed obscene if it:
- Depicts an image that is, or appears to be, a minor engaged in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse;
- Lacks serious literary, artistic, political, or scientific value.
A first-time offender convicted under this statute faces fines and at least five years to a maximum of 20 years in prison. Federal law also prohibits the use of misleading domain names, words, or digital images on the internet with the intent to deceive a minor into viewing harmful or obscene material.
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Obscenity and freedom of speech
The First Amendment to the United States Constitution protects the freedom of speech and expression. However, obscenity is a category of speech that is not protected by the First Amendment. This means that obscenity laws can prohibit lewd or extremely offensive words or pictures in public.
The issue of obscenity and freedom of speech is a complex one, as the line between protected speech and obscenity is not always clear. The Supreme Court has ruled that obscenity is not protected by the First Amendment, but it has also held that pornography is generally protected by the First Amendment. This includes any erotic material, with the exception of two types of pornography: obscenity and child pornography.
To determine whether a work is obscene, the Supreme Court created the Miller test, which includes three criteria:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interests;
- 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.
The Miller test remains the primary judicial tool for determining obscenity in the United States. However, it is important to note that state laws on obscenity differ, and each state has its own laws controlling obscene material.
The issue of obscenity and freedom of speech has been the subject of several notable court cases. For example, in Paris Adult Theatre I v. Slaton, the Court demonstrated that the First Amendment was not intended to protect all speech. In Erznoznik v. City of Jacksonville, the Court held that it is up to offended individuals to turn away from obscene material, rather than banning it outright.
In conclusion, the issue of obscenity and freedom of speech is a complex and evolving area of law, with the Supreme Court playing a key role in defining the boundaries of what constitutes protected speech under the First Amendment. The Miller test provides a framework for determining obscenity, but the line between protected speech and obscenity remains a subject of ongoing debate and interpretation.
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Defining obscenity
The First Amendment to the United States Constitution protects the freedom of speech and expression. However, obscenity is a category of speech that is not protected by these rights. The United States Supreme Court has held that the First Amendment does not protect two types of pornography: obscenity and child pornography. Thus, they can be banned based on their content.
Obscenity laws deal with the regulation or suppression of what is considered obscenity and are enacted to combat the sale and distribution of obscene materials. The adoption of these laws at the federal level in the US in 1873 was largely due to the efforts of Anthony Comstock, who created and led the New York Society for the Suppression of Vice. Comstock's efforts led to the passage of an anti-obscenity statute known as the Comstock Act, which made it a crime to distribute "obscene" material through the post.
While the legislation did not define "obscenity", the US Supreme Court created the Miller test for courts to use to determine whether material is obscene. The Miller test includes the following criteria:
- Whether the average person sees the material as having/encouraging excessive sexual interest based on community standards.
- Whether 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”.
The Miller test remains the US judicial precedent for determining obscenity. However, the Supreme Court has clarified that only the first two prongs of the test are issues of fact for the jury to determine, applying contemporary community standards. The third prong is not about whether an ordinary community member would find value in the material but whether a reasonable person would conclude that the work, as a whole, lacks value.
The Miller test has been invalidated, overturned, or superseded by other tests, such as the Wepplo test (1947) and the Hicklin test (1868).
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Frequently asked questions
Common law obscenity refers to any lewd or extremely offensive words or pictures in public that are not protected by the First Amendment's freedom of speech and expression protections.
The Miller test is a three-part test created by the U.S. Supreme Court to determine whether a work is obscene. The test includes the following criteria:
- Whether the average person sees the material as having/encouraging excessive sexual interest based on community standards.
- Whether 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.”
Federal law prohibits the distribution of obscene material to minors, with harsher penalties for offenders convicted of obscenity crimes involving minors. Federal law also prohibits the broadcast of obscene material during specified hours and the mailing of obscene material.
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