United States obscenity law

Although lower courts in the U.S. had used the Hicklin standard sporadically since 1868, it was not until 1879, when prominent federal judge Samuel Blatchford upheld the obscenity conviction of D. M. Bennett using the Hicklin test, that the constitutionality of the Comstock Law became firmly established.[6]

In Rosen v. United States (1896), the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin, [1868] L. R. 3 Q. B. 360. The Hicklin test defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."[7]

In the mid-1950s, the Supreme Court ruled in Roth v. United States, 354 U.S. 476 (1957) that the Hicklin test was inappropriate. Instead, the new Roth test for obscenity was:

whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest.[8]

In 1964, in Jacobellis v. Ohio, the Supreme Court held that a work could be obscene only if it was "utterly without redeeming social importance".[9] In his concurring opinion in the case, Justice Potter Stewart stated that obscenity is "constitutionally limited to hard core pornography.... I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description.... But I know it when I see it...."[10] In Memoirs v. Massachusetts (1966) (dealing with the banning of the book Fanny Hill) the Court applied the Roth-Jacobellis test to determine that though the other aspects of the test were clear, the censor could not prove that Fanny Hill had no redeeming social value.[11]

In 1973, the Supreme Court in Miller v. California established the three-tiered Miller test to determine what was obscene (and thus not protected) versus what was merely erotic and thus protected by the First Amendment.[12][13] 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.[14]

The Miller test remains the U.S. judicial precedent for determining obscenity.[5] However, the Supreme Court has clarified that only "the first and second prongs of the Miller test—appeal to prurient interest and patent offensiveness—are issues of fact for the jury to determine applying contemporary community standards". As for the third prong, "[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole".[15]

Symbol of the "New York Society for the Suppression of Vice", advocating book-burning

The following standards were once used by courts to determine obscenity. Each of them has been invalidated, overturned, or superseded by the Miller test.

• Wepplo test (1947): 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).
• Hicklin test (1868): 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)).

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.

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

• FCC v. Pacifica (1978),[16] better known as the "seven dirty words" case. In the decision, the Court found that only "repetitive and frequent" broadcast of indecent words at a time or place when a minor could hear them could be punished.
• In State v. Henry (1987), the Oregon Supreme Court ruled that the Oregon state law that criminalized obscenity was an unconstitutional restriction of free speech under the free speech provision of the Oregon Constitution, with the ruling making Oregon the "first state in the nation to abolish the offense of obscenity."[17] Its doing so, however, does not affect the federal government's authority to enforce its obscenity statutes.
• In Reno v. ACLU (1997), the Supreme Court invalidated several indecency provisions in the 1996 Communications Decency Act applying to the Internet.

Under U.S. law, the question whether a publication is obscene is determined by the Miller test. Several sections of 18 U.S. Code, Chapter 71, prohibit the transmission of obscenity, and the Supreme Court has ruled that such statutes are constitutional. However, it has ruled unconstitutional restrictions on the personal possession of obscenity. Federal obscenity laws at present apply to the distribution of obscenity in interstate or foreign commerce or through the U.S. mail; intrastate 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.[18]

Pornography that is not obscene under the Miller test is protected by the First Amendment. One example of it is mere nudity. In Jenkins v. Georgia, 418 U.S. 153 (1974), the Supreme Court found the film Carnal Knowledge not to be obscene under the constitutional standards announced by Miller. As declared by the trial judge in Jenkins, "The film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards." This principle was upheld time and again in later cases, including Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), in which a Jacksonville ordinance made it an offense to show films containing nudity when the screen was visible from a public street or place. The law was determined to be invalid as an infringement of First Amendment rights of the movie producer and theater owners.

A second example of protected pornography is single male-to-female vaginal-only penetration that does not show the ejaculation of semen (sometimes referred to as "soft-core" pornography), where the sexual act and its fulfillment (orgasm) are merely implied to happen rather than explicitly shown. In June 2006, the federal government brought a case against JM Productions of Chatsworth, California 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 were entitled American Bukkake 13, Gag Factor 15, Gag Factor 18 and Filthy Things 6. The case also included 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 the JM Productions films in question. At trial, the Department of Justice decided not to pursue the JM obscenity case any further.[19] The jury found that Five Star Video LC and Five Star Video Outlet LC were guilty of violating "18 USC 1465 - Transportation of obscene matters for sale or distribution" for having shipped JM Productions' film Gag Factor 18.[20] However, the specific content that the jury deemed "obscene" was not stated.

"Indecent" material that is not obscene or child pornography is protected by the First Amendment, except that the government may attempt to keep it away from minors. Examples of indecent material include nudity and George Carlin's "seven dirty words".[21]

While most of the obscenity cases in the United States in the past century have revolved around images and films, there have been many cases that dealt with textual works as well.

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 several cases. One of these was "A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Massachusetts, 383 U.S. 413 (1966)" wherein the book Fanny Hill, written by John Cleland c. 1760, was judged to be obscene in a proceeding that put the book itself on trial rather than its publisher. Another was "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."

However, the book was labeled "erotica" in the 1965 case (206 NE 2d 403) and there a division between erotica and obscenity was made—not all items with erotic content were automatically obscene. Further, the 1965 "John Cleland's 'Memoirs'" case added a further qualification for the proving of "obscenity"—the work in question had to inspire or exhibit "prurient" (that is, "shameful or morbid") interest.

In 1964, the U.S. Supreme Court, in Grove Press, Inc. v. Gerstein, cited Jacobellis v. Ohio (which was decided the same day) and overruled state court findings of obscenity against Henry Miller's Tropic of Cancer. A unauthorized "Medusa" edition of the novel was published in New York City in 1940 by Jacob Brussel; its title page claimed its place of publication to be Mexico. Brussel was eventually sent to prison for three years for the edition,[22] a copy of which is in the Library of Congress.

In 2005, the U.S. Department of Justice formed the Obscenity Prosecution Task Force in a push to prosecute obscenity cases.[23][24] Red Rose Stories (www.red-rose-stories.com, now defunct), a site dedicated to text-only fantasy stories, became one of many sites targeted by the FBI for shutdown.[25] The government alleged that Red Rose Stories contained depictions of child rape. The publisher pleaded guilty.[26]

Many U.S. states have had bans on the sale of sex toys, regulating them as obscene devices. For instance, the 1999 Law and Government 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. A federal judge reinstated the law in 2004. The matter was appealed to the US Supreme Court, who in 2007 refused to hear the case, thus the decision of the lower court is enforceable within the state of Alabama.[27] In 2007, a federal appeals court upheld Alabama's law prohibiting the sale of sex toys.[28] The law, the Anti-Obscenity Enforcement Act of 1998, was also upheld by the Supreme Court of Alabama on September 11, 2009.[29]

But other states have seen their sex toy bans ruled unconstitutional in the courts. In 2008 the United States Court of Appeals for the Fifth Circuit ruled a similar Texas statute violated the constitutional right to privacy that was recognized by the U.S. Supreme Court in the Lawrence v. Texas decision.[30] That ruling leaves only Mississippi, Alabama, and Virginia with current bans on the sale of obscene devices.[31] Alabama is the only state with a law specifically prohibiting the sale of sex toys.[32]

Obscenity law has been criticized in the following areas:[33]

• The U.S. Supreme Court has had difficulty defining the term. In Miller v. California, the court bases its definition to two hypothetical entities, "contemporary community standards" and "reasonable persons".
• Legislatures have had similar problems defining the term.
• The Miller test denies defendants due process of law because they cannot know whether the material they distribute or possess is obscene until after the jury returns its verdict.
• The first two prongs of the Miller test — that material appeal to the prurient interest and be patently offensive — require the impossible. They "require the audience to be turned on and grossed out at the same time".[34]
• Arguments have been made that the term "obscenity" is not defined in case law with sufficient specificity to satisfy the vagueness doctrine, which states that people must clearly be informed as to prohibited behavior.
• Critics have argued that no actual injury occurs when a mere preference is violated, so obscenity crimes are victimless.
• Critics have argued that, given its unusual and problematic history, unclear meaning, and the poor reasoning offered by the majorities in Roth and Miller to explain or justify the doctrine, the Supreme Court was simply wrong on the issue and the doctrine should be wholly discarded.

Congress passed a law in 1990 that required such organizations such as the National Endowment of the Arts (NEA) and National Association of Artists' Organizations (NAAO) to abide by general decency standards for the "diverse beliefs and values of the American public."[35] in order to receive grant money.

In National Endowment for the Arts v. Finley (1998), the Supreme Court upheld the law, finding that the speech restrictions were constitutional because they were conditions on funding rather than a direct regulation of speech.

Artists who create sexually explicit art sometimes face complaints that their work is inappropriate for children or constitutes sexual harassment. Such artworks have been removed and "no nudity" policies have been put in place.[36]

When these actions are challenged in court as violations of freedom of speech, the venues are often looked at to see if they are an actual "designated public forum." If they are, then public officials have violated the First Amendment rights of the individuals. If a court finds that the venue is not a designated public forum, then government officials have the right to exclude or censor the work.[36]

Lili St. Cyr, born Marie Van Schaack, with pasties

In the Miller decision the use of the words "contemporary community standards" typically means that the law evolves along with social mores and norms. This has been shown throughout the expansion of the pornography industry along with commercial pornography by people such as amateurs and publishers of personal websites on the World Wide Web. Indirect government control such as restrictive zoning of adult video stores and nude dancing were put in place because general obscenity convictions were harder to come by, but First Amendment case law allows reasonable time, place, and manner restrictions. Similarly a set of rules was put in place in Indiana to control erotic dancing, where legal, so that all dancers must either wear "pasties" or "g-strings" as shown in the 1991 case of Barnes v. Glen Theatre.[37]

State laws as well as federal law attempt to regulate pornography. Between 1995 and 2002, almost half of the states were considering bills to control internet pornography, and more than a quarter of states enacted such laws.[38] However, the federal courts, as in American Bookseller's Association v. Hudnut, have struck down anti-pornography laws as violating the First Amendment.[39]

Schools, universities, and libraries receive government funds for many purposes, and some of these funds go to censorship of obscenity in these institutions. There are a few different ways in which this is done. One way is by not carrying pornographic or what the government deems obscene material in these places; another is for these places to purchase software that filters the internet activity on campus. An example is the federal Children's Internet Protection Act (CIPA). This mandates that all schools and libraries receiving federal aid for internet connections install a "technology protection measure" (filter) on all computers, whether used by children or adults. There are some states that have passed laws mandating censorship in schools, universities, and libraries even if they are not receiving government aid that would fund censorship in these institutions. These include Arizona, Kentucky, Michigan, Minnesota, South Carolina, and Tennessee. Twenty more states were considering such legislation in 2001–2002.[40]

Child pornography refers to images or films (also known as child abuse images[41][42][43]) and in some cases outside of the United States, writings[43][44][45] depicting sexually explicit activities involving a child; as such, child pornography is a record of child sexual abuse.[46][47][48][49][50][51] Abuse of the child occurs during the sexual acts which are recorded in the production of child pornography,[46][47][49][50][51][52][53] and several professors of psychology state that memories of the abuse are maintained as long as visual records exist, are accessed, and are "exploited perversely."[51][52]

In New York v. Ferber, 458 U.S. 747 (1982), the U.S. Supreme Court held that child pornography does not have to be found legally obscene to be prohibited. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court held that child pornography that is produced without using an actual minor (computer-generated images, for example) is protected by the First Amendment.

Film censorship in the United States was recognized as constitutional without limits by the 1915 U.S. Supreme Court decision Mutual Film Corp. v. Industrial Commission of Ohio. This was overturned by the 1952 decision Joseph Burstyn, Inc. v. Wilson, restricting regulation only to "obscene" films. The 1965 case Freedman v. Maryland ruled that prior restraint of film exhibition without a court order was unconstitutional, leading to the end of most state and local film censorship boards. Current laws which can be enforced after the fact are limited by the definition of "obscene" in the 1973 U.S. Supreme Court decision Miller v. California.

The voluntary Motion Picture Association film rating system was adopted in 1968, functioning mostly to prevent children of various ages from seeing certain films at participating theaters. This has sometimes lead to self-censorship of certain sexual content among participating filmmakers wishing to avoid an X, R, or PG-13 rating that would restrict the size of the potential audience.

The most notable films given an "X" rating were Deep Throat (1972) and The Devil in Miss Jones (1973). These films show explicit, non-simulated, penetrative sex that was presented as part of a reasonable plot with respectable production values. Some state authorities issued injunctions against such films to protect "local community standards"; in New York the print of Deep Throat was seized mid-run, and the film's exhibitors were found guilty of promoting obscenity.[54] This Film Is Not Yet Rated is a 2006 film which discusses disparities the filmmaker sees in ratings and feedback: between Hollywood and independent films, between homosexual and heterosexual sexual situations, between male and female sexual depictions, and between violence and sexual content. They found that films have also been further censored than their heterosexual, male, white counterparts due to gay sex (even if implied), African American sex, or female pleasure as opposed to male pleasure.