United States obscenity law
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. (December 2009)
The 18th century book Fanny Hill has been subject to obscenity trials at various times (image: plate XI: The bathing party; La baignade)
Cover of an undated American edition of Fanny Hill
, ca. 1910
In the United States of America, 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 Constitution of the United States.
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 ... [b]ut I know it when I see it...." In the United States, the 1973 ruling of the Supreme Court of the United States 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: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) 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 (2016) obscenity cases in the United States 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 (1897)", 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 (1966)" wherein the book "Fanny Hill", written by John Cleland c. 1760, 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 (1973)" 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 (non-fiction) 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 (and is) frequently censored and confiscated; however, it remains a landmark case.
- (external link) 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 (1987), 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 Reno v. ACLU (1997), the Supreme Court struck down indecency laws applying to the Internet.
- In Miller v. California (1973) - 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 (1947): If material has a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires. (People v. Wepplo, 78 Cal. App.2d Supp. 959, 178 P.2d 853).
- Hicklin test (1868): the effect of isolated passages upon the most susceptible persons. (British common law, cited in Regina v. Hicklin, 1868. LR 3 QB 360 - overturned when Michigan tried to outlaw all printed matter that would 'corrupt the morals of youth' in Butler v. State of Michigan 352 U.S. 380 (1957))
- Roth Standard (1957): "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 (1957) - overturned by Miller
- Roth-Jacobellis (1964): "community standards" applicable to an obscenity are national, not local standards. Material is "utterly without redeeming social importance". Jacobellis v. Ohio 378 US 184 (1964) - famous quote: "I shall not today attempt further to define [hardcore pornography] ...But I know it when I see it."
- Roth-Jacobellis-Memoirs Test (1966): Adds that the material possesses "not a modicum of social value". (A Book Named John Cleland's Memoirs of a Woman of Pleasure v. Attorney General of Massachusetts, 383 U.S. 413 (1966))
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.
Obscenity law has been criticized in the following areas:
- Federal law forbids obscenity in certain contexts (such as broadcast); 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 (offensive) is ultimately a personal preference, alleged violations of obscenity law are not actionable (actions require a right).
- Because no actual injury occurs when a mere preference is violated, alleged violations of obscenity law are not actionable (actions require an injury).
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 refers to images or films (also known as child abuse images); 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, 458 747 (1982), 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, 394 557 (1969), that possession of obscene material could not be criminalized, while in Osborne v. Ohio, 495 103 (1990), 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."
Censorship in film
This is most notably shown with the "X" rating under which some films are categorized. The most notable films given an "X" rating were Deep Throat (1972) and The Devil in Miss Jones (1973). These films show explicit, non-simulated, penetrative sex that was presented as part of a reasonable plot with respectable production values. Some state authorities issued injunctions against such films to protect "local community standards"; in New York, the print of Deep Throat was seized mid-run, and the film's exhibitors were found guilty of promoting obscenity. According to the documentary This Film Is Not Yet Rated, films that include gay sex (even if implied) or female pleasure have been more harshly censored than their heterosexual, male counterparts. The Motion Picture Association of America (MPAA) issues ratings for motion pictures exhibited and distributed commercially to the public in the United States; the ratings are issued through the Classification and Rating Administration (CARA). The intent of the rating system is to provide information about the content of motion pictures so parents can determine whether an individual motion picture is suitable for viewing by their children.