Obscenity and pornography: legal definitions and distinctions

Criminology

Obscenity and Pornography

Kimberley Burton

Vice, Drugs and the Law

Dr. Lance Hignite

Obscenity and Pornography

Such things as pornography and obscenity can be defined differently by different people and at different times. Though there are legal definitions of both, the distinction between them is not always clear. Many people define pornography as a form of obscenity and hence the confusion. The two words, however, are clearly different. For example, even today the Supreme Court of the United States maintains that the First Amendment does not protect obscenity but it does many forms of pornography. Pornography can be a sexually explicit material used for private viewing which would not involve obscenity as the latter is understood today. And an obscenity does not have to be pornographic in nature. For example, showing somebody middle fingers is obscenity but it does not involve pornography (Rea, 2001). Pornography can be a form of obscenity if the pornography displayed falls under the category of obscenity.

It is what exactly defines obscenity that has caused so many problems over the years. The Supreme Court, in Miller v. U.S. decision in 1973, adopted the following three prongs to determine obscenity: (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 patiently 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 (Scott, Eitle, & Skovron, 1990, p. 139).

In this case the court clearly rejected the current requirement that obscene material be found to be "utterly without redeeming social value," and replaced it with the less stringent standard of lacking "serious literary, artistic, political, or scientific value." The court also rejected the requirement that the "contemporary community standards" used to evaluate whether something appeals to the "prurient interest" and is "patently offensive" must be national standards. Instead, they said that the jury may use the standards of the local community. A new element introduced by the Miller decision was the restriction of the definition of unprotected obscenity to that expressly laid out by state law. This provision, they believed, would get rid of the problem of giving fair notice to a dealer that material may subject him to prosecution (Ashcroft, 2011).

Miller makes clear that obscenity is to be judged by a local community standard, in particular, that of the average member of the community, to assess whether the expression at issue, taken as a whole, appeals to the prurient interest. This prong of the Miller test grants local (geographically-defined) communities the independence to draw the line between sexually-themed speech that is to be protected by the First Amendment within and for their respective communities, and sexually-themed speech that is to be deemed outside of the First Amendment's protection within and with respect to their communities. Therefore, although it might reasonably be thought that the First Amendment sets forth a national standard of protection for expression, in the context of regulating sexually themed speech, the Supreme Court's obscenity jurisprudence grants local communities the autonomy to determine what subset of such speech, if any, is to be deemed outside the protection of the First Amendment within and with respect to their communities (Nunziato, 2007).

Miller affirmatively establishes that local communities enjoy the privilege to determine what sexually themed expression is to be deemed obscene within their communities. Additionally, Miller grants local communities the autonomy to determine what sexually-themed expression is to be deemed protected within their communities. Second, Miller requires that the government regulator specifically set forth a list of sexual acts, the depictions of which are unprotected if they are deemed, applying contemporary community standards, to be patently offensive. The requirement that regulators set forth this list with specificity helps to reduce the potential for vagueness within obscenity statutes. This specific determination of patent offensiveness, like the determination of appeal to the prurient interest, is also to be made by the average member of the local community. Thus, under Miller, both the assessments of appeal to the prurient interest, and the assessment of patent offensiveness, are inevitably subject to geographic variability (Nunziato, 2007).

Although Miller's definition of obscenity based on community standards has been upheld for 23 years, the changing times are begging for an updated rule that can be applied in the contemporary technological world in which we live. Recent court decisions involving attempts to regulate obscenity on the Internet have left the continued use of Miller in doubt. In Reno v. ACLU3 (Reno I), the Court struck down the Communications Decency Act of 1996 ("CDA"), a statute that banned the sending or displaying of "indecent" and "patently offensive" materials to minors, as measured by a contemporary community standard. Among other things, the Court reasoned that CDA was unconstitutional because the statute did not define "indecent" or "patently offensive" and because these terms potentially cover large amounts of non-obscene material with serious educational or other value. "The Court also held that the statute's use of a contemporary community standard to determine what is "patently offensive" on the Internet "means that any communication available to a nation wide audience will be judged by the standards of the community most likely to offend by the message." The implication of this statement is that any definition that refers to "contemporary community standards" in the context of the Internet may be per se overly broad" (Fee, 2007).