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Obscenity

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Obscenity has several connotations. Obscenity and its parent adjective obscene take their derivation from the Greek terms ob skene, which literally means "offstage". This is because violent acts in Greek theatre were committed off stage. It then descends into the Latin word obscenus, meaning "foul, repulsive, detestable", (possibly derived from ob caenum), literally "from filth". The term is most often used in a legal context to describe expressions (words, images, actions) that offend the prevalent sexual morality of the time.

Despite its long formal and informal use with a sexual connotation, the word still retains the meanings of "inspiring disgust" and even "inauspicious; ill-omened", as in such uses as "obscene profits", "the obscenity of war", and the like. It can simply be used to mean profanity, or it can mean anything that is taboo, indecent, abhorrent, or disgusting.

The definition of obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities. Many cultures have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions, usually including, but not limited to pornographic material. Because the concept of obscenity is often ill-defined, it can be used as a political tool to try to restrict freedom of expression. Thus, the definition of obscenity can be a civil liberties issue.

British obscenity law

Obscenity law in England and Wales is currently governed by the Obscene Publications Act, but obscenity law goes back much further into the English common law.

The conviction in 1727 of Edmund Curll for the publication of Venus in the Cloister or the Nun in her Smock under the common law offence of disturbing the peace appears to be the first conviction for obscenity in the United Kingdom, and set a legal precedent for other convictions.

These common law ideas of obscenity formed the original basis of obscenity law in other common law countries, such as the United States.

United States obscenity law

The United States has constitutional protection for freedom of speech, which is not interpreted to protect every utterance. The Supreme Court has found that, when used in the context of the First Amendment, the word "obscenity" means material that deals with sex. In U.S. legal texts, the term "obscenity" now always refers to this "Miller test obscenity". The Supreme Court has ruled that it is legal to regulate the sale or transmission of obscenity, but that it is illegal to pass laws concerning the personal possession of obscenity. Federal obscenity laws at present apply to inter-state obscenity issues such as distribution, intra-state issues are for the most part still governed by State law.

Political history of obscenity in the US

In 2005, the United States Justice Department, under Bush-appointed Attorney General Alberto Gonzales, promised to start a "war" on adult entertainment following the re-election of the Conservative Christian George W. Bush as President some months earlier. An early blow to sexually explicit websites was the expansion of 18 USC 2257 requirements regarding record keeping, model consent, evidence and public accessibility; the regulations are now interpreted such that records be kept for any and all imagery - including such which had not previously had such requirements - which caused many sexual sites to shut down citing the difficulties of obtaining consent in the requisite forms from previous years, or the regulatory burden imposed. In September of that year a further attack on sexual material came as an FBI "Anti-Porn Squad" was formed, which has initially targetted for prosecution websites such as Red Rose Stories, one of many sites providing text-only fantasy stories. Other sites such as BeautyBound, run by Midori, a prominent BDSM teacher and author on Japanese bondage, have closed down despite not being targeted, due to these risks and legislative burdens.

Past standards

These standards were once used to determine exactly what was obscene. All have been invalidated, overturned, or superceded by the Miller Test.

  • Hicklin test: 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: 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).
  • Roth Standard: "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: "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: 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))

Under FCC rules and federal law, radio stations and over-the-air television channels cannot air obscene material at any time and cannot air indecent material between 6 a.m. and 10 p.m.: language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities (indecency is not as bad as obscenity).

Many historically important works have been described as obscene, or prosecuted under obscenity laws. For example, the works of Charles-Pierre Baudelaire, Lenny Bruce, William S. Burroughs, James Joyce, D. H. Lawrence, Henry Miller, and the Marquis de Sade.

U.S. Activity and Court Cases dealing with Obscenity

  • In Miller v. California, the Supreme Court ruled that 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.
  • In Reno v. ACLU, the Supreme Court struck down indecency laws applying to the Internet, which casts serious doubt on the FCC’s ability to ever punish speech using the vague label of “indecency.”
  • FCC v. Pacifica is better known as the landmark “seven dirty words” case. In that 1978 ruling, the Justices found that only “repetitive and frequent” use of the words in a time or place when a minor could hear can be punished.
  • In 1998 a jury in St. Tammany Parish, New Orleans convicted Christine Brenan of "promoting obscene devices". They gave her a two-year suspended sentence, five years of probation and a fine of $1,500. The 1st Circuit Court of Appeals later struck down the law, ruling it unconstitutionally vague.
  • The 1999 obscenity statute of Alabama (Ala. Code. § 13A-12-200.1) made it "unlawful to produce, distribute or otherwise sell sexual devices that are marketed primarily for the stimulation of human genital organs." Alabama claimed that these products were obscene, and that there was "no fundamental right to purchase a product to use in pursuit of having an orgasm. The ACLU challenged the statute, which was overturned in 2002.
  • In 2000 a jury in Provo, UT found Larry Peterman not guilty on obscenity charges, as the defense showed that residents of the town were disproportionately large consumers of the very materials Peterman was selling. (See Provo, UT)
  • On January 20, 2005, in United States v. Extreme Associates (PDF file), District Court Judge Gary L. Lancaster ruled that the statutes against the distribution of obscenity are unconstitutional, dimissing the case against Extreme Associates. He asserts that being prohibited from obtaining (due to a ban on distribution) that which is legal to possess, amounts in effect, to a ban on possession. The precedent for this case was violation of due process, based upon the Supreme Court ruling in Lawrence_v._Texas. [1] The federal government stated on February 16 that it intends to appeal the decision to the 3rd Circuit Court of Appeals. (Of interest is that the stated grounds for appeal are not that the ruling erred in law, but that it would if upheld undermine "all laws based on shared views of public morality"). Statement
  • On or around October 3 2005, Red Rose Stories, a website providing a wide range of everyday and more extreme erotic stories (text only, no images), was raided in the owner's absence by the FBI's recently founded 'Anti-Porn Squad'. Until this time, written stories alone had not been a target for any obscenity case. Rose posted an open letter on the website stating that "I am being charged with 'OBSCENITIES' and face a minimum term of 3 years in a federal prison. Our stories are NOT protected speech. Please, please, be careful out there. When it comes to free speech SEX STORIES are NOT covered. The ONLY legal sex stories are those that involve a man and a woman, consenting to MISSIONARY POSITION SEX, in a dark room ... They are trying to say fantasy stories are illegal." [2]. Also, "it appears the Porn Squad has been told that the best possibility of prosecution includes golden showers, scat ... and BDSM along with other fringe fetishes... [the US] government is not targeting kiddie porn only" [3]. No indictment or official prosecution has yet been announced, however the case is seen as a potential landmark in US approaches to sexually explicit material. It seems possible that the basis of any legal case would be inter-state distribution (via the internet) of obscene material (but see Extreme Associates, above).

Research Resources

See also

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