Obscenity

An obscenity is any statement or act which strongly offends the prevalent morality of the time.^[1] It is derived from the Latin obscaena (offstage) a cognate of the Ancient Greek root skene, because some potentially offensive content, such as murder or sex, was depicted offstage in classical drama. The word can be used to indicate a strong moral repugnance, in expressions such as "obscene profits" or "the obscenity of war".

United States obscenity law

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.

Federal obscenity law in the U.S. is unusual in that there is no uniform national standard. 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…"^[2] 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]

Non image-based obscenity cases in the USA

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."

In 2005, the U.S. Department of Justice formed the Obscenity Prosecution Task Force in a push to prosecute obscenity cases.^[4][5] 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.^[6] The government alleged that Red Rose Stories contained depictions of child rape. The publisher pled guilty.^[7]

Many U.S. states have had bans on the sale of sex toys, regulating them as obscene devices. Some states have seen their sex toy bans ruled unconstitutional in the courts.^[8] That ruling leaves only Mississippi, Alabama, and Virginia with current bans on the sale of obscene devices.^[9]

Key U.S. court cases on obscenity

• In 1957, two associates of acclaimed poet Allen Ginsberg were arrested and jailed for selling his book "Howl and Other Poems" to undercover police officers at a beatnik bookstore in San Francisco. Eventually the California Supreme Court declared the literature to be of "redeeming social value" and therefore not classifiable as "obscene". Because the poem "Howl" contains pornographic slang and overt references to drugs and homosexuality, the poem was (and is) frequently censored and confiscated; however, it remains a landmark case.

• FCC v. Pacifica (1978) (external link) better known as the landmark "seven dirty words" case. In that ruling, the Court found that only "repetitive and frequent" use of the words in a time or place when a minor could hear can 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."^[10]

• In Reno v. ACLU (1997), the Supreme Court struck down indecency laws applying to the Internet.

Standards superseded by the Miller Test include:

• Wepplo (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))
• Roth Standard (1957): "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 (1964): "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 (1966): 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))
• In Miller v. California (1973), 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.

FCC rules and federal law govern obscenity in broadcast media. 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.

Criticism

Obscenity law has been criticized in the following areas:^[11]

• Federal law forbids obscenity in certain contexts (such as broadcast);^[12] however, the law does not define the term.^{[citation needed]}
• The U.S. Supreme Court similarly has had difficulty defining the term. In Miller v. California, the court defers definition to two hypothetical entities, "contemporary community standards" and "hypothetical reasonable persons".
• The courts and the legislature have had similar problems defining this term because it is paradoxical, and thus impossible to define.
• Because the term "obscenity" is not defined by either the statutes or the case law, this law does not satisfy the Vagueness doctrine, which states that people must clearly be informed as to the prohibited behavior.
• Because the determination of what is obscene (offensive) is ultimately a personal preference, alleged violations of obscenity law are not actionable (actions require a right).
• Because no actual injury occurs when a mere preference is violated, alleged violations of obscenity law are not actionable (actions require an injury).

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.^[13] Thus the open ended conflicting notes above remain in effect for obscenity prosecutions.

Some states have passed laws mandating censorship in schools, universities, and libraries even if they are not receiving government aid that would require censorship in these institutions. These include Arizona, Kentucky, Michigan, Minnesota, South Carolina, and Tennessee. Twenty more states were considering such legislation in 2001–2002.^[14]

Child pornography

Main article: Child pornography

Child pornography refers to images or films (also known as child abuse images^[15][16][17])—or in some cases, writings^[17][18][19]—that depict sexually explicit activities involving a child; as such, child pornography is a record of child sexual abuse.^{[20][21][22][23][24][25]} Abuse of the child occurs during the sexual acts which are recorded in the production of child pornography,^{[20][21][23][24][25][26][27]} 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."^[25][26]

Censorship in film

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.^[28] However, it's been 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.^[29]

United Kingdom

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.^[30]

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.^[28]

In 2008, the UK prosecuted a man for writing a fictional sex story (R v Walker).^[31][32] In 2009, the crown prosecution service (CPS) dropped the case.^[33]

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 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.

The Obscene Publications act is notoriously vague, defining obscenity as material likely to "deprave and corrupt". The 1959 act was passed just as most Western countries were about to enter a new phase of sexual freedom. The trial of Penguin Books over Lady Chatterley's Lover in 1960 failed to secure a conviction and the conviction in the 1971 trial of Oz magazine was overturned on appeal. An attempt to prosecute the University of Central England in 1997 over a copy of a library book by Robert Mapplethorpe was abandoned amidst derision from academics and the media.^[34]

During the 1960s and 1970s most Western countries legalised hardcore pornography. By the 1980s the UK was almost the only liberal democracy where the sale of hardcore pornography was still completely illegal, although ownership was not a criminal offence (except child pornography). Home videotape was a booming market and it was relatively simple for individuals to smuggle hardcore material in from Europe or the USA, where it had been purchased legally, either for personal use or to copy it for distribution. This resulted in a considerable black market of poor quality videotapes. Meanwhile, people attempting to buy pornography legally would often be stuck with heavily censored R18 certificate material.

Whilst the authorities did their best to stay on top of illegal pornography they found that juries, whilst not particularly liking the material, were reluctant to convict defendants where the material was intended for private use amongst consenting adults. During the 1990s the advent of the internet made it easier than ever before for British citizens to access hardcore material. Finally, in 2000, following the dismissal of a test case brought by the BBFC, hardcore pornography was effectively legalised, subject to certain conditions and licensing restrictions.^[35] It is still an offence to sell obscene material by mail order.^[36] In late August 2005, the UK announced that it plans to criminalize possession of extreme pornographic material, rather than just publication.^[37]

After 1984 videotape sellers were more likely to be prosecuted under the Video Recordings Act rather than the OPA. The VRA requires that all videos must have a certificate from the BBFC. If the BBFC refuses a certificate a video is effectively banned for home viewing, but not necessarily in the cinema. Four films that were originally refused a certificate, The Exorcist, Straw Dogs, The Evil Dead and The Texas Chainsaw Massacre were granted a certificate in the late 1990s and have subsequently been screened on mainstream television.

New Zealand

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.^[28]

Canada obscenity law

Section 163 of the Canadian Criminal Code provides the country's legal definition of "obscenity". Officially termed as "Offences Tending to Corrupt Morals",^[38] 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

(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever; or

(b) makes, prints, publishes, distributes, sells or has in his possession for the purposes of publication, distribution or circulation a crime comic.

"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"^[39] however the case was dismissed in 1995.^[40]

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".^[41][42]

Other countries

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 local 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.^[43]

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.

See also

Blasphemy Censorship Censorship in the United States First Amendment to the United States Constitution Freedom of speech

Freedom of speech in the United States Grotesque body Indecency Legal status of internet pornography Obscene libel

Obscene phone call Obscene Publications Acts Profanity Seven dirty words Sexual norm

Notes

References

• Henderson, Jeffrey The Maculate Muse: Obscene Language in Attic Comedy 1991 Oxford University Press ISBN 0-19-506685-5
• The Melon Farmers (UK)
• O'Toole, L. (1998) Pornocopia: Porn, Sex, Technology and Desire. London: Serpent's Tail ISBN 1-85242-395-1
• Silver, Judith, of Coollawyer.com, "Movie Day at the Supreme Court or 'I Know It When I See It': A History of the Definition of Obscenity", on FindLaw.com.
• Slater, W. J., review of "The Maculate Muse: Obscene Language in Attic Comedy" by Jeffrey Henderson. Phoenix, Vol. 30, No. 3 (Autumn, 1976), pp. 291–293. doi:10.2307/1087300

Further reading

• FEPP
• Regina v. Hicklin, 3 Queens Bench 360, 362 (1868).
• United States v. One Book Called Ulysses, 5 F. Supp. 182, 183–185 (S.D.N.Y. 1933) affirmed, United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706–707 (2d Cir. 1934)
• American Civil Liberties Union report
• Cho, Christina, Commerato, Kim & Heins, Marjorie (2003) Free Expression in Arts and Funding: a public policy report. New York: FEPP; pp. 38–39
• Sex and violence in crime films
• Miller v. California, 413 U.S. 15, 24 (1973)
• Child pornography

External links

Look up obscenity in Wiktionary, the free dictionary.

• Chapter 71 of Part I of Title 18 of the United States Code, relating to obscenity. Hosted by the Legal Information Institute.
• "A resource for educating the public and reporting violations of internet obscenity laws"
• 2005, Senate Commerce, Science & Transportation Cmte. Hearing on Decency in the Media archive at CSpan.
• Ethical Spectacle article on problems with definition of obscenity
• "Under Color of Law: Obscenity vs. First Amendment" Nexus Journal (Chapman University Law School) article on problems with definition of obscenity.
• Truetales.org report on "recent FBI obscenity raids" (2005-10-24)
• Model Citizenship - Real-life Examples of Obscene and Sociably Unacceptable Behavior

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