An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious. The term is also applied to an object that incorporates such a statement or displays such an act.
In a legal context, the term obscenity is most often used to describe expressions (words, images, actions) of an explicitly sexual nature. The word can be used to indicate a strong moral repugnance, in expressions such as "obscene profits", "the obscenity of war", etc. It is often replaced by the word salaciousness.
According to Merriam-Webster online dictionary, that which is obscene (i.e.: an obscenity) is quite simply defined as repulsive, or disgusting to the senses.[1]
The definition of what exactly constitutes an 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. As such censorship restricts freedom of expression, crafting a legal definition of obscenity presents a civil liberties issue.
In the United States of America, issues of obscenity raise issues of limitations on the freedom of speech and of the press which are otherwise protected by the First Amendment to the Constitution of the United States. The Supreme Court has found that obscenity is an exception to the constitutional rights under the First Amendment, and 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.
Legally, a distinction is made between socially permitted material and discussions that the public can access and obscenity, access to which 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. 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 be classified as obscene outside of the legally determined court cases. Title 18, chapter 71 of the USC deals with obscenity, the workings out of the law described in this article, most notably the aforementioned Miller test.
Former Justice Potter Stewart of the Supreme Court of the United States, in attempting to classify what material constituted exactly "what is obscene," infamously 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…"[2]
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.[3]
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. [4]
In U.S. legal texts, therefore, the question of "obscenity" presently always refers to this "Miller test obscenity". As articulated in several sections of 18 USC Chapter 71, the Supreme Court has ruled that it is constitutional to legally limit the sale, transport for personal use or other transmission of obscenity. However, it has ruled unconstitutional the passing of law concerning personal possession of obscenity per se. Federal obscenity laws at present apply to inter-state and foreign obscenity issues such as distribution; 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.[5]
At present, there are only two legally protected areas of explicit commercial pornography. The first is "mere nudity" as upheld in "Jenkins v. Georgia, 418 U.S. 153 (1974)" whereby the film Carnal Knowledge was deemed not to be obscene under the constitutional standards announced by Miller. 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)" in which the city of Jacksonville stated that showing films containing nudity when the screen is visible from a public street or place is a punishable offense. The law was determined to be invalid as it was an infringement of First Amendment rights of the movie producer and theatre owners. The second is 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, 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 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 the JM Productions films in question. The case was brought to trial on October 16, 2007. At the first date of trial, the US DoJ decided not to pursue the JM obscenity case any further, leaving the matter without resolution.[6] While the US DoJ 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".[7] The jury found that 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".[8] However, the specific content in that film that the jury deemed to actually fulfill the legal qualification of being "obscene" has not been specifically stated at this point.
The differentiation between indecent and obscene material is a particularly difficult one, and a contentious First Amendment issue that has not fully been settled. Similarly, the level of offense (if any) generated by a profane word or phrase depends on region, context, and audience.
While most of the obscenity cases in the United States 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 copyright infringing "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 jail for three years for the edition,[9] a copy of which is in the Library of Congress.
In September 2005 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.[10] Other websites such as BeautyBound.com have closed themselves down despite not being targeted, due to these risks and legislative burdens.
These standards were once used to determine exactly what was obscene. All have been invalidated, overturned, or superseded by the Miller Test.
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.
Obscenity law has been criticized in the following areas:[27]
It should be noted that in light of the recent decision of the en banc decision of the Third Circuit Court of Appeals, as brought by Judge Lancaster in the original US vs. Extreme Associates case, only the US Supreme Court is allowed to revise its earlier decision that established the Miller decision.
The US Supreme Court refused to hear, effectively rejecting, such modification in August 2006 when the same en banc decision by the Third Circuit was sent to the US Supreme Court for review.[11] Thus the open ended conflicting notes above remain in effect for obscenity prosecutions.
Congress passed a law in 1990 that required such organizations such as the National Endowment of the Arts (NEA) and National Associations of Artists Organizations (NAAO) to abide by general decency standards for the "diverse beliefs and values of the American public."[29]
In 1998, Congress made a decision in the case of National Endowment for the Arts vs. Karen Finley, which upheld the general standards and decency law within the United States.
Government owned exhibition spaces are available under the Supreme Court's "public forum" doctrine. This doctrine explains that citizens within the United States have access to display in such public places such as lobbies of public buildings, theatrical productions, etc.
Even with this law in place it is hard for artists who have addressed sexually explicit work in work because of complaints which are generally in the form of "inappropriate for children" or seen as a form of "sexual harassment." Therefore the arts works are removed and at times there are official "no nudity" policies that are put in place.[30]
When these decisions are taken to court on account of free expression the venues are often looked at to see if they are an actual "designated public forum." If it is then public officials have violated the First Amendment rights on the individuals. The other side is if the court finds that there is "no designated public forum" where government officials have the right to exclude and or censor the work.[30]
In the Miller decision the use of the words "contemporary community standards" means that the law evolves along with social mores and norms. This has been shown throughout the booming business 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 obscenity convictions were harder to come by and not protected by the First Amendment. Similarly a set of rules was put in place 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.[29]
The laws on pornography are regulated by the state, meaning that there is not a national law for pornography. State laws on internet porn are recently expanding with more and more states regulating the age limits to purchase porn. Many states already have restrictions on buying books and magazines of porn, but with the recent increase in technology, states have been now restricting the laws on internet porn. Between 1995 and 2002, almost a fifth of states were preparing bills to control internet pornography. It is also against the law to transmit any of these materials from internet or literature to a minor and if caught, it would lead to prosecution.
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, or 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.[31]
Child pornography refers to images or films (also known as child abuse images[32][33][34]) and in some cases writings[34][35][36] depicting sexually explicit activities involving a child; as such, child pornography is a record of child sexual abuse.[37][38][39][40][41][42] Abuse of the child occurs during the sexual acts which are recorded in the production of child pornography,[37][38][40][41][42][43][44] 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."[42][43]
Child pornography is widely considered extremely obscene.
This is most notably shown with the "X" rating that some films are categorized as. 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.[45]
In the United Kingdom, the Obscene Publications Acts sets the criteria for what material is allowed to be publicly accessed and distributed.
Stanley Kauffmann's novel The Philanderer was published by Penguin Books in 1957 and was unsuccessfully prosecuted for obscenity.[46]
The Criminal Justice and Immigration Act 2008 prohibits the possession of "extreme pornography". This has included the first film to show pubic hair (Antonioni's Blowup, 1966); the first film to depict full frontal nudity (the Swedish production Puss och Kram); W.R. - Misterije organizma [W.R.—Mysteries of the Organism], 1971); and the first theatrically distributed film to depict the act of fellatio (Intimacy, 2001).[45]
Sex crime has generated particular concern. In 1976 the BBFC claimed that, in that year, it had viewed 58 films depicting "explicit rape", declaring scenes that glorified it as "obscene". As opposed to questions of "indecency", which have been applied to sexual explicitness, films charged with being obscene have been viewed as having "a tendency to deprave and corrupt" and been liable to prosecution.[45]
In 2008, the UK prosecuted a man for writing a fictional sex story.[47][48] In 2009, the case was dropped by the crown prosecution service (CPS) before it reached trial.[49]
In New Zealand, screening of Deep Throat (1972) was only cleared in 1986. However, the film has not been screened because the only cinema which has tried to organize a screening was thwarted by the city council that owned the building's lease. Such is the tight regulation of sex in the cinema that its history has been one of a series of certificated firsts.[45]
Section 163 of the Canadian Criminal Code provides the country's legal definition of "obscenity". Officially termed as "Offences Tending to Corrupt Morals", [12] the Canadian prohibited class of articles which are to be legally included as "obscene things" is very broad, including text only written material, pictures, models (including statues), records or "any other thing whatsoever" -- that according to Section 163(8) -- has "a dominant characteristic of the publication is the undue exploitation of sex, or the combination of sex and at least one of crime, horror, cruelty or violence" is deemed to be "obscene" under the current law.
The current law states
163. (1) Every one commits an offense who
"Crime comics" are stated to be books that glorify criminal activities and have at least one depiction of such criminal actions of the book's text.
The Canadian Border Services Agency seizes items it labels obscene.
In 1993, Canadian police arrested the 19-year-old writer of a fictional sex story "The Forestwood Kids"[50] however the case was dismissed in 1995.[51]
In February 2009, citing its Policy On The Classification Of Obscene Material, the CBSA banned two Lucas Entertainment films because they show the "ingestion of someone else's urine... with a sexual purpose".[52][53]
Various countries have different standings on the types of materials that they as legal bodies permit their citizens to have access to and disseminate among their locale populations. The set of these countries permissible content vary widely accordingly with some having extreme punishment up to and including execution for members who violate their restrictions, as in the case of Iran where the current laws against pornography now include death sentences for those convicted of producing pornography. [13]
In India the Obscenity law is the same as had been framed by the British Government. Charges of obscenity have been levelled against various writers and poets till date; the law has not yet been revised. The famous trials relate to the Hungryalists who were arrested and prosecuted in 1960s.