What is “obscene”? Are you breaking the law? Aren’t we all?

With all the shit going down over at Evil Angel I thought it was a good idea to post a little primer on obscenity laws. You can find the data I gathered from from over at Obscenity Crimes.

A Quick Primer on Obscenity Laws
and the First Amendment

I. What is Pornography?

  1. The term “pornography” is a generic, not a legal term. As noted by the Supreme Court in its Miller v. California 413 U.S. 15 (1973) obscenity case:

    “‘Pornography’ derives from the Greek (harlot, and graphos, writing). The word now means ‘1: a description of prostitutes or prostitution 2. a depiction (as in a writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement.’ Webster’s Third New International Dictionary [Unabridged 1969]).”

  2. The 1986 Attorney General’s Commission on Pornography defined pornography as, “Material that is predominantly sexually explicit and intended primarily for the purpose of sexual arousal.”

II. What is Obscenity?

The 1973 landmark case, Miller v. California, supra (as modified by two subsequent cases) established a three-pronged test for determining whether a “work” (i.e., material or performance) is obscene and, therefore, unprotected by the First Amendment. To be obscene, a judge and/or a jury must determine:

  1. That the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; AND

  2. That the work depicts or describes in a patently offensive way, as measured by contemporary community standards, sexual conduct specifically defined by the applicable law; AND

  3. That a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political and scientific value.

Examples of “hardcore sexual conduct” that an obscenity law could include for regulation under the second prong of the test are patently offensive representations or descriptions of:

  1. Ultimate sexual acts, normal or perverted, actual or simulated
  2. Masturbation, lewd exhibition of the genitals, excretory functions, and sadomasochistic abuse.

Side note: Typical “hardcore pornography” (e.g., a magazine, video or Web site) consists of little if anything more than one depiction of hardcore sex after the other (i.e., its “wall-to-wall” hardcore sex).

III. Obscenity Is Not Protected by the First Amendment

  1. In Roth v. United States, 354 U.S. 476 (1957), the Supreme Court answered the question “whether obscenity is utterance within the area of protected speech and press.” In holding that obscenity is “not within the area of constitutionally protected speech or press,” the Roth Court quoted from its earlier Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) decision:
  2. “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene….[S]uch utterances are of no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

  3. In Miller v. California, supra, the Supreme Court said:

    “This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. . . . The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a ‘misuse of the great guarantees of free speech and free press . . . ‘The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political or social changes desired by the people’. . .But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter.” [Emphasis added by Miller Court]

IV. Governmental Justifications for Obscenity Laws

  1. Mr. Justice Harlan, concurring in Roth v. United States, supra, said:
  2. “[E]ven assuming that pornography cannot be deemed ever to cause in an immediate sense, criminal…conduct, other interests within the proper cognizance of the State may be protected by the prohibition placed on such materials. The state can reasonably draw the inference that over a long period of time the indiscriminate dissemination of materials, the essential character of which is to degrade sex, will have an eroding effect on moral standards.”

  3. In Paris Adult Theater I v. Slaton, 413 U.S. 49 (1973), the Supreme Court identified several valid governmental interests that justify a prohibition on obscenity:

  1. “In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even if it is feasible to enforce effective safeguards against exposure to juveniles and to passersby…These include the interest of the public in the quality of life and total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself.”
  2. “Although there is no conclusive proof of a connection between antisocial behavior and obscene material, the legislature… could quite reasonably determine that such a connection does or might exist. In deciding Roth, this Court implicitly decided that a legislature could legitimately act on such a conclusion to protect the social interest in order and morality.”
  3. “The sum of experience…affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex.”
  4. “As Mr. Chief Justice Warren stated, there is a ‘right of the Nation and of the states to maintain a decent society.'”

V. Federal Obscenity Laws

Federal laws relating to the crime of obscenity are contained in the following titles and sections of the U.S. Code:

  • 18 U.S.C. 1461 — Mailing obscene matter
  • 18 U.S.C. 1462 — Importation or use of a common carrier to transport obscene matter
  • 18 U.S.C. 1464 — Broadcasting obscene language
  • 18 U.S.C. 1465 — Interstate transportation of obscene matter
  • 18 U.S.C. 1466 — Wholesale and retail sale of obscene matter which has been transported in interstate commerce (must be engaged in business of selling or transferring obscenity)
  • 18 U.S.C. 1468 — Distribution of obscene matter by cable or satellite TV
  • 47 U.S.C. 223 — Making an obscene communication by means of telephone

Sections 1462 and 1465 cited above also prohibit distribution of obscenity on the Internet.

“Dealing in obscene matter” is also a predicate offense under the Federal Racketeer Influenced and Corrupt Organizations (RICO) statute. (Title 18, Section 1961-1968).


The 93 United States Attorneys—appointed by the President, confirmed by the U.S. Senate and located nationwide (each state has at least one)—are responsible for enforcement of the Federal obscenity laws. The U.S. Attorneys work with the FBI, Postal Inspectors and Customs Officers to enforce Federal obscenity laws.

VI. Obscenity and the Internet

In 1996, the U.S. Court of Appeals for the Sixth Circuit in the case of United States v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied, 519 U.S. 820 (1996), was presented with the issue of defining “community” in order to determine whether materials that had been transported over the Internet were obscene.

Defendants, a husband and wife, operated a computer bulletin board system (BBS) from their home in California. A postal inspector in Tennessee became a member of their service and subsequently received images by means of a computer and by mail. These materials depicted a wide variety of sexual conduct, including bestiality, torture and excretory fetishism. The couple was convicted by a jury in the Western District of Tennessee for violating federal obscenity laws [18 USC 1462 and 1465] in connection with their operation of their BBS.

The couple appealed the case to the Sixth Circuit. Their appeal was based on the assertion (among other grounds) that the trial venue was improper because it was in Memphis, where undercover Federal agents accessed and downloaded files, not in California; and it was unclear which community’s standards should apply in determining whether the contents of a nationally-accessible BBS are obscene.

In upholding the convictions, the Court of Appeals rejected defendants’ argument that the materials should have been judged by the community standards of California rather than Tennessee. The Court stated (in part): “Furthermore, it is well established that there is no constitutional impediment to the government’s power to prosecute pornography dealers in any district into which the material is sent.”

In 2000, the U.S. Court of Appeals for the Third Circuit invalidated the Child Online Protection Act because the law, which restricts children’s access to obscene-for-minors material on the World Wide Web, uses “community standards” in determining whether sex material is obscene for minors. In 2002, the Supreme Court reversed the Third Circuit (Ashcroft v. ACLU, No. 00-1293), with five judges concluding that federal obscenity laws were not unconstitutional as applied to the Internet solely because obscenity laws require application of community standards.

VII. State and Local Obscenity Laws

Workable statewide obscenity laws exist in 40 states. In some states, cities and counties can also enact local obscenity laws. These laws can encompass both obscene materials and performances.

The prosecuting attorney of each county or judicial district (known as district, commonwealth or state’s attorney, etc.) enforces the state obscenity laws. State and local police may make arrests.

Alaska, Maine, New Mexico, Vermont and West Virginia do not have a statewide obscenity law, and Montana and South Dakota have totally ineffective state laws. New obscenity laws are needed in these states.

In Oregon, Colorado and Hawaii, the State Supreme Court either invalidated [Oregon] or greatly weakened the state obscenity laws. Amendments to the State Constitution are needed in these states.

VIII. Other State Laws Regulating Pornography and ‘Adult Uses’

Throughout the country, there are thousands of state laws and local ordinances that regulate the sale and display of pornography and so-called “sexually oriented businesses.” These laws include:

Harmful-to-minors sales and display laws, which restrict minors’ access to materials obscene for minors.

Open booth laws, which require that the doors of “peep show booths” be removed.

Zoning laws, which restrict the location of “adult bookstores,” topless bars, etc.

Alcoholic Beverage Control (ABC) laws, which prohibit or regulate nudity in bars/bottle clubs.

Nuisance laws, which allow closure of all or part of “adult bookstores” and other “adult” businesses if prostitution, lewd conduct or high-risk sexual conduct occur on the premises.

Obscene device laws, which prohibit the sale of dildos and artificial vaginas.

Public Indecency laws, which require performers in commercial establishments where no alcohol is served or consumed to at least wear “pasties” and “G-strings.”

Sex Supermarket laws, which restrict the number of “adult uses” that can exist at a premises.

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