Chapter Overview

The Law of Obscenity:

Prosecutions for obscenity did not occur in this nation until the early 19th century. In the 1820s and 1830s, many states adopted their first obscenity laws. The first federal law was passed in 1842. The government actively prosecuted obscenity in the wake of the Civil War, and in 1873 the Congress adopted a strict new obscenity law. Obscenity was defined as being anything that had a tendency to deprave and corrupt those whose minds might be open to such immoral influences and into whose hands it might happen to fall. This rule, called the Hicklin rule, meant that if any part of a book or other work had the tendency to deprave or corrupt any person (such as a child or overly sensitive individual) who might happen to see the work, the material was obscene and no person could buy it or see it. This definition facilitated government censorship of a wide range of materials.

In the 1950s and early 1960s, the Supreme Court adopted a new definition or test for obscenity, the Roth-Memoirs test. The test had three main parts:

1. The dominant theme of the material, taken as a whole, appeals to an average person's prurient interest in sex.
2. The material is patently offensive because it affronts contemporary community standards relating to sexual matters. It was assumed that there was a single, national standard that was applicable to all parts of the country.
3. The material is utterly without redeeming social value. It has no social value at all.

Contemporary Obscenity Law:

The Miller test is used today by American courts to determine whether something is obscene. It has three parts. Material is legally obscene under the following conditions:

1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest. This test requires the fact finder to apply local (usually state) standards rather than a national standard. The jury (or the judge if there is not a jury) determines the standard, based on its knowledge of what is acceptable in the community.
2. The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. Again, the fact finder in the case determines patent offensiveness, based on local community standards. But the Supreme Court has ruled that only so-called hard-core pornography can be found to be patently offensive. Also, either the legislature or the state supreme court must specifically define the kind of offensive material that may be declared to be obscene.
3. The material lacks serious literary, artistic, political or scientific value. This is a question of law, not of fact, to be decided in large part by the judge.

The three-part Miller test is the test that courts must use in defining obscenity in all cases except those involving juveniles. The Supreme Court has ruled that states may use a broader definition of obscenity when they attempt to block the sale or distribution of erotic material to children or when they attempt to stop the exploitation of children who are forced to engage in sexual conduct by pornographic filmmakers. But such laws must be careful so as not to unconstitutionally ban legal material as well. Laws aimed at stopping the use of children in preparing sexually explicit material have also been permitted by the high court. The federal courts blocked an attempt by the city of Indianapolis to outlaw written and visual material that might result in discrimination against women or provoke violence against women and children.

Controlling Obscenity:

Postal censorship has historically been an important means used by the U.S. government to control the flow of obscene material in the United States. Today the postal service is less aggressive and permits postal patrons themselves to block the delivery of solicitations for adult materials and other obscene publications. Communities may also censor films before they are shown, or limit video and DVD rentals, so long as the community follows strict procedures laid down by the U.S. Supreme Court.

Regulation of Non-obscene Erotic Material:

Significant efforts were made on many fronts during the '80s to control the flow of nonobscene, sexually explicit material. Many communities attempted to use zoning ordinances to regulate such material. These laws are permissible so long as they are strongly justified, don't exclude or substantially reduce the number of such businesses, and are drawn in a narrow fashion to limit only the narrowest possible range of speech. Conservative groups applied considerable pressure to music and the arts in the past two decades. Rock groups like 2 Live Crew were tried (but acquitted) of obscenity. Pressure on the record industry resulted in a labeling scheme that troubles many civil libertarians. Controversies surrounding art erupted in the Congress, and one gallery director was charged with obscenity for displaying a photographic exhibit. In the end there were few legal victories for the conservative critics. But some observers fear that intimidation and the threat of lawsuits will result in a growing conservatism in the arts community. Government efforts at censorship today are increasingly aimed at computer networks. In 1997 the Supreme Court ruled that the Communications Decency Act violated the First Amendment. Congress adopted the Child Online Protection Act in 1998 in an attempt to overcome the objections to the CDA voiced by the Supreme Court but this too was deemed a violation of the First Amendment by two federal courts. A federal court in Virginia ruled that public libraries cannot install on all the computers in the library filtering software that denies users access to certain Web sites.