United States obscenity law deals with the regulation or suppression of what is considered obscenity and therefore not protected speech or expression under the First Amendment to the United States Constitution. In the United States, discussion of obscenity typically relates to defining what pornography is obscene. Issues of obscenity arise at federal and state levels. State laws operate only within the jurisdiction of each state, and state laws on obscenity differ. Federal statutes ban obscenity and child pornography produced with real children (such child pornography is unprotected by the First Amendment even when it is not obscene). Federal law also bans broadcasting (but not cable or satellite transmission) of "indecent" material during specified hours.
Most obscenity cases in the United States in the past century have involved images or films, but there have also been prosecutions of textual works as well, a notable one being that of the 18th-century novel Fanny Hill. Because censorship laws enacted to combat obscenity restrict the freedom of expression, crafting a legal definition of obscenity presents a civil liberties issue.
Legal issues and definitions
The sale and distribution of obscene materials had been prohibited in most American states since the early 19th century, and by federal law since 1873. Adoption of obscenity laws in the United States at the federal level 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 intense 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. It also prohibited the use of the mail for distribution of birth control devices and information. Comstock was appointed postal inspector to enforce the new law. Twenty-four states passed similar prohibitions on materials distributed within the states. The law criminalized not only sexually explicit material, but also material dealing with birth control and abortion. However, the legislation did not define "obscenity", which was left to the courts to determine on a case-by-case basis.
In the United States, the suppression or limitation of what is defined as obscenity raises issues of freedom of speech and of the press, both of which are protected by the First Amendment to the Constitution of the United States. The Supreme Court has ruled that obscenity is not protected by the First Amendment, but the courts must determine in each case whether the material in question is obscene. Erotic art (including "classic nude forms" such as Michelangelo's David statue) and less respected commercial pornography are generally not considered obscene.
The U.S. Supreme Court created the Miller test for courts to use to determine whether material is obscene. Because the Miller test uses "community standards", the same item can be legally obscene in one jurisdiction but protected by the First Amendment in another. With the advent of Internet distribution of potentially obscene material, this question of jurisdiction and community standards has created significant controversy in the legal community, because, since material on the internet may be accessible everywhere, the most restrictive community may be able to ban it everywhere. See United States v. Thomas, 74 F.3d 701 (6th Cir. 1996).
There does not exist a specific listing of material that is obscene apart from court decisions holding material obscene in particular communities. Title 18, chapter 71 of the U.S. Code makes obscene material illegal.
The Citizen's Guide to U.S. Federal Law on Obscenity lists several relevant statutes regarding obscenity.
Definition of obscenity Although lower courts in the U.S. had used the Hicklin standard sporadically since 1868, it was not until 1879, when prominent federal judge Samuel Blatchford upheld the obscenity conviction of D. M. Bennett using the Hicklin test, that the constitutionality of the Comstock Law became firmly established.
In Rosen v. United States (1896), the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin, L. R. 3 Q. B. 360. The Hicklin test defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."Rosen, at 43
In the mid-1950s, the Supreme Court ruled in Roth v. United States, that the Hicklin test was inappropriate. Instead, the new Roth test for obscenity was:
In 1964, in Jacobellis v. Ohio, the Supreme Court held that a work could be obscene only if it was "utterly without redeeming social importance".378 U.S. 187, 191 (1964). In his concurring opinion in the case, Justice Potter Stewart stated that obscenity is "constitutionally limited to hard core pornography.... I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description.... But I know it when I see it...."378 U.S. 184, 197 (1964) In Memoirs v. Massachusetts (1966) (dealing with the banning of the book Fanny Hill) the Court applied the Roth-Jacobellis test to determine that though the other aspects of the test were clear, the censor could not prove that Fanny Hill had no redeeming social value.Memoirs v. Massachusetts
In 1973, the Supreme Court in Miller v. California established the three-pronged Miller 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 Miller test remains the U.S. judicial precedent for determining obscenity. However, the Supreme Court has clarified that only "the first and second prongs of the Miller test—appeal to prurient interest and patent offensiveness—are issues of fact for the jury to determine applying contemporary community standards". As for the third prong, "[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole".Pope v. Illinois, 481 U.S. 497, 500-501 (1987).
Past standards
The following standards were once used by courts to determine obscenity. Each of them has been invalidated, overturned, or superseded by the Miller test. 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)). Wepplo test (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).
Other court cases on obscenity and indecency FCC v. Pacifica (1978), better known as the "seven dirty words" case. In the decision, the Court found that only "repetitive and frequent" broadcast of indecent words at a time or place when a minor could hear them could 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." Its doing so, however, does not affect the federal government's authority to enforce its obscenity statutes. In Reno v. ACLU (1997), the Supreme Court invalidated several indecency provisions in the 1996 Communications Decency Act applying to the internet.
Application of test Under U.S. law, the question whether a publication is obscene is determined by the Miller test. Several sections of 18 U.S. Code, Chapter 71, prohibit the transmission of obscenity, and the Supreme Court has ruled that such statutes are constitutional. However, it has ruled unconstitutional restrictions on the personal possession of obscenity. Federal obscenity laws at present apply to the distribution of obscenity in interstate or foreign commerce or through the U.S. mail; intrastate issues are for the most part still governed by state law. "Obscene articles ... are generally prohibited entry" to the United States by U.S. Customs and Border Protection.
Pornography that is not obscene under the Miller test is protected by the First Amendment. One example of it is mere nudity. In Jenkins v. Georgia, 418 U.S. 153 (1974), the Supreme Court found the film Carnal Knowledge not to be obscene under the constitutional standards announced by Miller. As declared by the trial judge in Jenkins, "The film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards." This principle was upheld in later cases, including Erznoznik v. City of Jacksonville, 422 U.S. 205, 206 (1975), in which "a Jacksonville, Fla., ordinance that prohibit[ed] showing films containing nudity by a drive-in theater when the screen was visible from a public street or place". The Supreme Court found the law invalid as an infringement of the First Amendment rights of the movie producer and theater owners.
A second example of protected pornography is single male-to-female vaginal-only penetration that does not show the ejaculation of semen (sometimes referred to as "soft-core" pornography), where the sexual act and its fulfillment (orgasm) are merely implied to happen rather than explicitly shown. In June 2006, the federal government brought a case against JM Productions of Chatsworth, California in order to classify commercial pornography that specifically shows actual semen being ejaculated as obscene. The four films that were the subject of the case were entitled American Bukkake 13, Gag Factor 15, Gag Factor 18 and Filthy Things 6. The case also included charges of distribution of obscene material (a criminal act under 18 USC § 1465 - "Transportation of obscene matters for sale or distribution") against Five Star DVD for the extra-state commercial distribution of the JM Productions films in question. At trial, the Department of Justice decided not to pursue the JM obscenity case any further. The jury found that Five Star Video LC and Five Star Video Outlet LC were guilty of violating "18 USC 1465 - Transportation of obscene matters for sale or distribution" for having shipped JM Productions' film Gag Factor 18. However, the specific content that the jury deemed "obscene" was not stated.
Obscenity vs. indecency
"Indecent" material that is not obscene or child pornography is protected by the First Amendment, except that the government may attempt to keep it away from minors. Examples of indecent material include nudity and George Carlin's "seven dirty words".Levi, Lili, The FCC's Regulation of Indecency, First Reports, A First Amendment Center Publication, vol. 7. no. 1, April 2008.
Non image-based obscenity cases in the United States Obscene texts