US obscenity law

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" is usually limited to content that directly refers to explicit sexual acts that are publicly accessible, though it has at times encompassed other subject matters, such as spoken and written language that can be publicly transmitted and received by the general public.

The legal term of obscenity is usually denoted to classify a distinction between socially permitted material and discussions that the public can access versus those that should be denied. There does exist a classification of those acceptable materials and discussions that the public should be allowed to engage in, and the access to that same permitted material—which in the areas of sexual materials ranges between the permitted areas of erotic art (which usually includes "classic nude forms" such as Michelangelo's David statue) and the generally less respected commercial pornography. The legal distinction between artistic nudity, and permitted commercial pornography (which includes sexual penetration) that are deemed as "protected forms of speech" versus "obscene acts", which are illegal acts and separate from those permitted areas, are usually separated by the predominant culture appreciation regarding such. The accepted areas are deemed to fit those sexual acts regarded as "normal", while the obscene areas are considered to be deviant or unworthy of public access. For example, in the United States currently, images of mere human nudity and single couple heterosexual vaginal-only penetration are listed as protected speech, while images showing anal and homosexual penetration are presently not. However, no such specific objective distinction exists outside of legal decisions in federal court cases where a specific action is deemed to fit the classification of obscene and thus illegal. The difference between erotic art and (protected) commercial pornography, vs. that which is legally obscene (and thus not covered by 1st Amendment protection), appears to be subjective to the local federal districts inside the United States and the local moral standards at the time.

In fact, federal obscenity law in the U.S. is highly unusual in that—not only is there no uniform national standard, but rather, there is an explicit legal precedent (the "Miller test", below) that all but guarantees that something that is legally "obscene" in one jurisdiction may not be in another. In effect, the First Amendment protections of free speech vary by location within the U.S., and over time. 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. (See United States v. Thomas, 74 F.3d 701 (6th Cir. 1996))

Even at the federal level, there does NOT exist a specific listing of which exact acts are to classified as "obscene" outside of the legally determined court cases.

Former Justice Potter Stewart of the Supreme Court of the United States, in attempting to classify what material constituted exactly "what is obscene", famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced . . . [b]ut I know it when I see it . . ."

However, in the United States, the 1973 ruling of the Supreme Court of the United States in Miller v. California established a three-tiered 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 basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Justice Douglas wrote a dissenting opinion that eloquently expressed his dissatisfaction with the ruling: The idea that the First Amendment permits government to ban publications that are "offensive" to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed "to invite dispute," to induce "a condition of unrest," to "create dissatisfaction with conditions as they are," and even to stir "people to anger." The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard "offensive" gives authority to government that cuts the very vitals out of the First Amendment. As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment - and solely because of it - speakers and publishers have not been threatened or subdued because their thoughts and ideas may be "offensive" to some.

In U.S. legal texts, therefore, the question of "obscenity" presently always refers to this "Miller test obscenity". The Supreme Court has ruled that it is constitutional to legally limit the sale, transport for personal use (U.S. v. Extreme Associates) or other transmission of obscenity, but that it is unconstitutional to pass laws concerning the personal possession of obscenity per se. Federal obscenity laws at present apply to inter-state and foreign obscenity issues such as distribution; intra-state 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.

At present, the only legally protected areas of explicit sexual areas of commercial pornography are 1) "mere nudity" as upheld in "Jenkins v. Georgia, 418 U.S. 153 (1974)" whereby the film "Carnal Knowledge" is deemed not to be obscene under the constitutional standards announced in Miller and appellant's conviction therefore contravened the First and Fourteenth Amendments. As declared by the judge at trial "The film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards)." This was upheld time and again in later cases including "Erznoznik v. City of Jacksonville FL, 422 U.S. 205 (1975)" whereby the city of Jackonville stated such film showing was a punishable offense for a drive-in movie theater to exhibit films containing nudity, when the screen is visible from a public street or place. The law was determined to be invalid as it was an infringement of First Amendment rights of the movie producer and theatre owners and 2) single male to female vaginal-only penetration that does NOT show the actual ejaculation of semen, sometimes referred to as "soft-core" pornography wherein the sexual act and its fulfillment (orgasm) are merely implied to happen rather than explicitly shown.

In June 2006, the U.S. Federal government in the district of Arizona brought a case against JM Productions of Chatsworth, Calif. 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 are entitled "American Bukkake 13", "Gag Factor 15", "Gag Factor 18" and "Filthy Things 6". The case also includes 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 JM Productions' films in question. The case has been advanced to actual trial, which is scheduled to begin on October 16th 2007. At the first date of trial, the US DoJ has decided NOT to pursue the JM obscenity case any further, leaving the matter without resolution, possibly fearing the formal establishment of sperm showing sex films as a nationally legal protected material (declared as "non-obscene") if the trial was decided in favor of JM Productions. While the US DoJ had decided to abandon its legal pursuit of the JM productions, U.S. District Court Judge Roslyn O. Silver has forced the legal case against Five Star DVD distributors to continue, whereby the legal classification of whether "sperm showing through ejaculation" is an obscene act and thus illegal to produce or distribute will be definitely answered in order to convict Five Star of being guilty of "18 USC 1465 - Transportation of obscene matters for sale or distribution".  The jury found Five Star Video LC and Five Star Video Outlet LC were guilty of "18 USC 1465 - Transportation of obscene matters for sale or distribution" for having shipped JM Productions' film "Gag Factor 18". However, the specific content in that film that the jury deemed to be actually fulfill the legal qualification of being "obscene" has not been specifically stated at this point.

Non image based obscenity cases in the USA
While most of the cases of obscenity in the United States are limited to actual images, there have been many other cases whereby the mere thought of acts that are considered unacceptable for consumption by the general public have been deemed to be obscene and thus illegal, despite having no pictures at all in such determined "obscene" material.

The classification of "obscene" and thus illegal for production and distribution has been judged on printed text-only stories starting with "Dunlop v. U.S., 165 U.S. 486 (1897)" which upheld a conviction for mailing and delivery of a newspaper called the 'Chicago Dispatch,' containing "obscene, lewd, lascivious, and indecent materials", which was later upheld in both "A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Mass., 383 U.S. 413 (1966)" whereby the "Fanny Hill" written by John Cleland about 1760, was judged to be obscene in a proceeding that put on the book itself on trial rather than its publisher and "Kaplan v. California, 413 U.S. 115 (1973)" whereby the court most famously determined that "Obscene material in book form is not entitled to any First Amendment protection merely because it has no pictorial content."

In September 2005 a further attack on the printed text came as an FBI "Anti-Porn Squad" was formed, which has initially targeted for prosecution websites such as Red Rose Stories (www.red-rose-stories.com, now defunct), one of many sites providing text-only fantasy stories.(See ongoing trials below) Other former BDSM lifestyle websites such as BeautyBound.com, run by Midori, a prominent BDSM teacher and author on Japanese bondage, have closed themselves 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 superseded 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 less intense than obscenity).

Many historically important works have been described as obscene, or prosecuted under obscenity laws. For example, the works of Charles Baudelaire, Lenny Bruce, William S. Burroughs, James Joyce, D. H. Lawrence, Henry Miller, the words "piss" and "erection" in the UK 1950s premier of Samuel Beckett's play Waiting for Godot, 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 Congress's ability to pass such wide-ranging regulation banning "indecent" speech on communications technologies that enter the home.


 * 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,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 Law and Government of Alabama (Ala. Code. Â§ 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. A federal judge reinstated the law in 2004. The matter was appealed to the US Supreme Court who in their refusal to hear the case has determined that the decision of the lower court is constitutional and enforceable within the state of Alabama.  Other states have similar laws regarding such product sales within their borders.


 * In 2000, Larry Peterman of Provo, UT was charged with selling obscene material at his chain of video stores. A jury found him not guilty as the defense showed that residents of the town were disproportionately large consumers of the very materials Peterman was selling.


 * On 2005-01-20, in United States v. Extreme Associates, U.S. District Judge Gary Lancaster of western Pennsylvania initially ruled that the statutes against the obscenity laws were unconstitutionally vague and thus dismissed the case. However Judge Lancaster's decision was overturned on Department of Justice's appeal to the United States Court of Appeals for the Third Circuit, which reinstated federal obscenity charges against Extreme Associates stating that Judge Lancaster overstepped his authority. The Third Circuit Court ruled that what was protected was "a right to a protective zone ensuring the freedom of a man’s inner life", and noting a previous ruling in which higher courts "declined to equate the privacy of the home relied on in Stanley with a 'zone of privacy' that follows a distributor or a consumer of obscene materials wherever he goes." It also ruled that the lower court erred in attempting to overturn a Supreme Court ruling, which was reserved for the Supreme Court itself to do.  The Court of Appeals denied Extreme Associates' constitutional challenge and held that the federal statutes regulating the distribution of obscenity do not violate any constitutional right to privacy.  The case has been remanded back to Lancaster's court but as a jury decision not a bench decision (judge only decision) whereby the jury could make the same decision and rule that the law itself is flawed and should be removed, rather than just Extreme Associates and its products merely does not meet the stated criteria of being "obscene".  The case is set to begin actual trial commencement in the fall to winter portion of 2007.


 * On or around 2005-10-03, Karen Fletcher operating the Red Rose Stories website which was text based only erotic stories of various intensity, was raided in the owner's absence by the FBI on the first non image based obscenity charges in the USA in several decades. Fletcher posted an open letter on the website before its closing in mid 2006, 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." . 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" .  On September 3rd 2007, Fletcher's request to have the obscenity charges against her dismissed was denied by Federal U.S. District Judge Joy Flowers Conti and will proceed into actual jury trial.  Fletcher's obscenity trial is currently scheduled to begin actual trial around April 2008.


 * As noted on Truetales.org:
 * "Beginning in late September 2005, a number of Websites containing SM material chose to delete that material or shut down, in response to the information in the Washington Post article. Among the Websites to censor themselves have been atruerose.com, kinkygurl.com, leatherquest.com, suicidegirls.com, UnderMySkirt.org, and three related Websites, houseofdesade.org, grandpadesade.com, and realbdsm.com. Midori's BeautyBound.com shut down as well, because of other U.S. legislation against erotic material."
 * "According to various media sources, on 2005-10-07 the Webmaster of Now That's Fucked Up, a Website for user-submitted amateur photos, was arrested for obscenity... after his Website received national attention for permitting U.S. soldiers overseas to post pictures showing war dead. There is no indication that the FBI was involved in this case."


 * In April 2006, the four main US television networks and some 800 affiliated stations, sued the Federal Communications Commission which had recently increased in great measure both the strictness of its obscenity rules, and the penalties associated with sexual language. The networks claim that the FCC outstepped both its authority and precedent, that the old rules were drafted for a time when expectations were tighter and choice more limited, that they are hindered by rules not applicable to the hundreds of other stations available now, and that the changes were unconstitutional.