Obscenity and Pornography

Obscenity and Pornography: Legal Definitions and Key Terminology

  • The legal issue surrounding obscenity and pornography is its definition, as no court in U.S. history has protected it under the First Amendment.

  • The challenge lies in the subjective nature of obscenity.

Key Terminology

  • Prurient Interest: Sexual desires that are cultivated, inflamed, or lustful thoughts resulting from the consumption of pornography and obscenity.

  • Patently Offensive: Hardcore sexual conduct, including bestiality and sadomasochism.

  • Sexting: The exchange of nude or semi-nude images, which can be problematic, especially involving minors, potentially leading to charges akin to child pornography.

  • Indecency: Utterance of words unacceptable to society, primarily in broadcast media (television and radio), initially tied to George Carlin's "Seven Words You Can't Say on Television" and later expanded.

  • Pornography: A generic term, not a legal term, except in the context of child pornography.

Judicial Definitions of Obscenity and Pornography

The lecture is organized chronologically to give the judicial definitions of obscenity and pornography as it has evolved, tracing from judicial test A to judicial test B by filling in the court cases in between.

Regina v. Hicklin (1868)

  • An English case involving a pamphlet against the Roman Catholic Church prosecuted under the Obscene Publications Act of 1857.

  • The court established the Hicklin test to evaluate obscenity.

Hicklin Test Components

  1. Isolated Passage: If an isolated passage is deemed obscene, the entire work is considered obscene.

  2. Susceptible Person: If the material may influence a susceptible person to generate unsavory ideas or actions, it is considered obscene, since this susceptible person would be considered a danger to society.

The Comstock Act of 1873

  • Anthony Comstock, a lobbyist, advocated for federal laws to prevent the mailing of obscene materials through the U.S. Post Office.

  • The Comstock Act, passed by Congress in 1873, granted the Postmaster General the authority to prohibit obscene material from being sent through the mail.

  • Comstock was appointed as the first postmaster general in charge of enforcing the Act and confiscated a significant amount of material.

Roth and Alberts Cases (1957)

  • The United States emulated the Regina v. Hicklin test, until these cases in 1957.

  • Two cases with contradictory rulings were joined together by the Supreme Court to establish a consistent policy.

  • Roth was using public mailings to send out an obscene book and advertisement.

  • Albert's was distributing obscene books.

  • Roth was about public mailing, and Albert's was about distributing. Roth used

Roth Test

  1. Average Person: A mythical average person who is influenced by the material, replacing the susceptible person test.

  2. Work as a Whole: The work must be judged as a whole, replacing the isolated passage test.

  3. Utterly Without Redeeming Social Importance: Added to allow classical works of art and literature to enter the country.

Miller v. California (1973)

  • This case provides the foundation for judging obscene and pornographic material in the United States.

  • Miller was convicted for using a mass mailing campaign involving sexually explicit pictures, drawings, and books.

Miller Test

  1. Average Person: Applying contemporary community standards.

  2. Contemporary Community Standards: Each community can define its own standards of obscenity or pornography.

  3. Prurient Interest: The work, taken as a whole, appeals to prurient (lustful) interest.

  4. Patently Offensive: The work is patently offensive as defined by applicable state law, which requires each state and federal jurisdiction to have a definition of obscenity in its code book.

  5. Lacks SLAPS: The work lacks serious literary, artistic, political, or scientific value. SLAPS = Serious + Literary + Artistic + Political +Scientific

Protected Sexual Expression

Sexual expression that is protected by the First Amendment can still be controlled or regulated by jurisdiction.

Zoning Requirements

  • Dispersal Zoning: Spreading out shops of sexual items throughout the community, prohibiting them near schools, churches, residential neighborhoods, or bars which economically strangles adult shops.

  • Concentration Zoning: Concentrating all sexual expression into one area of the community.

Postal Regulations

  • The Comstock Act prohibits obscene material from being sent through the mail.

  • Under the Goldwater Amendment to the Postal Reorganization Act, individuals can request not to receive sexual material through the mail.

Display Laws

  • Display laws regulate the display of sexually explicit magazines in stores.

  • Magazines may be placed behind the counter, requiring customers to request them from the clerk and provide identification.

  • Alternatively, magazines may be covered in plastic or brown paper bags to protect random viewers from being exposed to the material.

Self-Regulation

  • Self-regulation involves purveyors of sexually explicit material attempting to tone down the material and covers, but it is generally ineffective.

Civil Rights Approach

  • Andrea Dworkin and Catherine MacKinnon attempted to apply the 1964 Civil Rights Act to obscenity cases, arguing that the mere existence of obscene and pornographic material is demeaning to women.

  • The Supreme Court declared this approach unconstitutional unless the Miller test is met.

RICO Act

  • The Racketeer Influenced and Corrupt Organizations (RICO) Act allows the government to confiscate money or assets acquired through illegal activities.

  • The federal government has used RICO to prosecute individuals in the obscene or pornographic business, confiscating assets purchased with money from illegal activities.

Studies on Impact of Obscenity and Pornography

President's Commission on Obscenity and Pornography (Lockhart Commission, 1968-1970)

  • Concluded that they could not find any link between the consumption of obscene material and sexually based crimes.

  • Recommended removing state laws banning the consumption of obscenity by consenting adults.

  • The Senate overwhelmingly rejected the commission's conclusions.

Meese Commission (1986)

  • Concluded that there is a link between violence in society and violent obscenity.

  • Made 99 recommendations, which had a short-term influence on the availability of sexually explicit material.

Conclusion

The current industry generates between 9 and 10 billion dollars annually, and there has been a purchase in the consumption of obscene material since the internet has come on, since individuals are more willing to consume obscene material in the privacy of their own home.