Obscenity

Obscenity has several connotations. Obscenity and its parent adjective obscene come from the Latin word obscenus, meaning "foul, repulsive, detestable", and possibly derived from ob caenum, literally "from filth". The term is most often used in a legal context to describe expression (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 King's 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 the possession of obscenity is legal but that the distribution or transmission of obscenity is not.

Previously various other standards have been used:

• 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 : All ideas having even the slightest redeeming social importance - unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion - have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. Roth v. United States 354 U.S. 476 (1957) - overturned by Miller
• Jacobellis: "community standards" applicable to an obscenity are national, not local standards. Jacobellis v. Ohio 378 US 184 (1964) - famous quote: "I know it when I see it [hardcore pornography] and this is not it".
• Roth-Memoirs Test: (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming 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. Court Cases dealing with Obscenity

In Miller v. California, the Supreme Court ruled that materials were obscene if they appealed, “to a prurient interest in sex,” showed “patently offensive sexual conduct” that was specifically defined by an 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 know 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.

On January 20, 2005, in United States v. Extreme Associates, 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

See also

• blasphemy
• indecency
• censorship
• obscene telephone call
• seven dirty words

External link

• Chapter 71 of Part I of Title 18 of the United States Code, relating to obscenity. Hosted by the Legal Information Institute.
• U.S. v. Extreme Associates Judge rules that obscenity statutes are unconstitutional