Obscenity

An obscenity is any utterance or act that 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

The 18th century book Fanny Hill has been subject to obscenity trials at various times (image: plate XI: The bathing party; La baignade)
Cover of an undated American edition of Fanny Hill, ca. 1910

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 U.S.

While most recent (2016) obscenity cases in the United States have revolved around images and films, the first obscenity cases dealt with textual works.

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, 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 pleaded guilty.[7] Extreme pornographer Max Hardcore served 30 months of a 46-month prison sentence for obscenity.

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]

Literature (non-fiction) communicating contraceptive information was prohibited by several states. The last such prohibition, in Connecticut, was overturned judicially in 1965.

Key U.S. court cases on obscenity

Standards superseded by the Miller Test include:

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]

Obscenity laws remain enforceable under Miller despite these criticisms. 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.[13]

Child pornography

Child pornography refers to images or films (also known as child abuse images[14][15][16])—or in some cases, writings[16][17][18]—that depict sexually explicit activities involving a child; as such, child pornography is a record of child sexual abuse.[19][20][21][22][23][24] Abuse of the child occurs during the sexual acts that are recorded in the production of child pornography,[19][20][22][23][24][25][26] 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."[24][25]

In New York v. Ferber, 458 U.S. 747 (1982), the U.S. Supreme Court ruled that child pornography need not be legally obscene in order to be outlawed. The Court ruled that in contrast to the types of images considered in Miller, images that depicted underlying harm to children need not appeal to "the prurient interest of the average person," portray sexual conduct in "a patently offensive manner," nor be considered holistically, in order to be proscribed. Another difference between U.S. constitutional law concerning obscenity and that governing child pornography is that the Supreme Court ruled in Stanley v. Georgia, 394 U.S. 557 (1969), that possession of obscene material could not be criminalized, while in Osborne v. Ohio, 495 U.S. 103 (1990), the high court ruled that possession of child pornography could be criminalized. The reason was that the motive for criminalizing child pornography possession was "to destroy a market for the exploitative use of children" rather than to prevent the material from poisoning the minds of its viewers. The three dissenting justices in that case argued, "While the sexual exploitation of children is undoubtedly a serious problem, Ohio may employ other weapons to combat it."

Censorship in film

This is most notably shown with the "X" rating under which some films are categorized. 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.[27] According to the documentary This Film Is Not Yet Rated, films that include gay sex (even if implied) or female pleasure have been more harshly censored than their heterosexual, male counterparts.[28] MPAA through CARA now has NC-17 rating instead of X. MPAA is the Motion Pictures of America Association.[29] The Classification and Rating Administration (CARA) issues ratings for motion pictures exhibited and distributed commercially to the public in the United States, with the intent to provide parents information concerning the content of those motion pictures, to aid them in determining the suitability of individual motion pictures for viewing by their children. CARA will rate any motion picture at any time before or after it is exhibited or distributed in the United States." See carafilmratings.com for more information on the ratings. The chart of fees and the ratings may be seen by scrolling down through.[30]

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.[31]

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.[27]

In 2008, the UK prosecuted a man for writing a fictional sex story (R v Walker).[32][33] In 2009, the crown prosecution service (CPS) dropped the case.[34]

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.

For visual works of art the main obscenity law in England and Wales was, until the 1960s, the Vagrancy Act 1838 which was successfully used in prosecutions against D.H. Lawrence for an exhibition of his paintings at the Warren Gallery, London, in 1929,[35] and in 1966 against the British artist Stass Paraskos for an exhibition of his paintings held that year in the northern English city of Leeds.[36] Parts of the Act were repealed shortly after the Paraskos trial and it has rarely been used since in relation to visual art.

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.[37]

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 United States, 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.

While the authorities did their best to stay on top of illegal pornography they found that juries, while not particularly liking the material, were reluctant to convict defendants where the material was intended for private use among 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.[38] It is still an offence to sell obscene material by mail order.[39]

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 that has tried to organize a screening was thwarted by the city council that owned the building's lease.[27]

Canada

Section 163 of the Canadian Criminal Code provides the country's legal definition of "obscenity". Officially termed as "Offences Tending to Corrupt Morals",[40] the Canadian prohibited class of articles that 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 Canada 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"[41] however the case was dismissed in 1995.[42]

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".[43][44]

Brazil

Ever since 1940, in the Title VI of the Penal Code, naming crimes against sexual dignity (until 2009 crimes against [social] conventions), the fourth chapter is dedicated to a crime named "public outrage [related] to modesty" (Portuguese: ultraje público ao pudor, pronounced [uwˈtɾaʒi ˈpublikw aw puˈdoʁ]).

It is composed of two articles, Art. 233 "Obscene Act", "to practice an obscene act in a public place, or open or exposed to the public", punished with arrest of 3 months to 1 year or a fine; and Art. 234 "Obscene Written Piece or Object", to do, import, export, purchase or have in one's property, to ends of trade, distribution or public display, any written, drew, painted, stamped or object piece of obscenity, punished with arrest of 6 months to 1 years or a fine.[45]

Criticism to the legislation have included:[46]

It is often used against people who expose their nude bodies in public environments that were not warranted a license to cater to the demographic interested in such practice (the first such place was the Praia do Abricó in Rio de Janeiro, in 1994), even if no sexual action took place, and it may include for example a double standard for the chest area of women and men in which only women are penalized. Such a thing took place in FEMEN protests in São Paulo, in 2012.[47]

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.[48]

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 the 1960s.

See also

Notes

  1. ↑ Merriam-Webster Online, accessed September 2010.
  2. ↑ Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
  3. ↑ Miller v. California, 413 U.S. 15, 24 (1972).
  4. ↑ Abramson, Larry (27 September 2005). "Federal Government Renews Effort to Curb Porn". Morning Edition. NPR. Retrieved 11 April 2012.
  5. ↑ Gellman, Barton (20 September 2005). "Recruits Sought for Porn Squadn". The Washington Post. Retrieved 11 April 2012.
  6. ↑ "Red Rose Stories Closed by FBI". XBiz. 7 October 2005. Retrieved 11 April 2012.
  7. ↑ Ward, Paula Reed (2008-08-07) Woman pleads guilty to obscenity for child-sex story site. Pittsburgh Post-Gazette Retrieved 2011-05-08.
  8. ↑ Kandyba, Slav (4 November 2008). "Texas AG Drops Adult Toy Case Appeal". XBiz. Retrieved 11 April 2012.
  9. ↑ Samalin, Zach (14 February 2008). "Court Lifts Ban on Sex Toys in Texas". Newser. Retrieved 11 April 2012.
  10. ↑ Hudson, David (1998-10-28). "Wisconsin high court could strike down obscenity law". First Amendment Center. Retrieved 2011-01-13.
  11. ↑ Huston, William: "Under Color of Law, Obscenity vs. the First Amendment", Nexus Journal, Vol 10 (2005): 75:82.
  12. ↑ "Obscene, Indecent and Profane Broadcasts". FCC. Retrieved 2013-08-17.
  13. ↑ "Technology and Liberty | American Civil Liberties Union". Aclu.org. 2008-11-14. Retrieved 2013-08-17.
  14. ↑ Wortley, Richard; Stephen Smallbone (2006). Situational Prevention Of Child Sexual Abuse, Volume 19 of Crime prevention studies. Criminal Justice Press. p. 192. ISBN 1-881798-61-5.
  15. ↑ Sanderson, Christiane (2004). The seduction of children: empowering parents and teachers to protect children from child sexual abuse. Jessica Kingsley Publishers. p. 133. ISBN 1-84310-248-X.
  16. 1 2 Akdeniz, Yaman (2008). Internet child pornography and the law: national and international responses. Ashgate Publishing, Ltd. p. 11. ISBN 0-7546-2297-5.
  17. ↑ "Definition of 'Child Pornography'". Criminal Code of Canada, Section 163.1. Electronic Frontier Canada. 2004.
  18. ↑ "Sharpe Not Guilty of Possessing Written Child Pornography". CBC News. 26 March 2002.
  19. 1 2 Finkelhor, David (Summer–Fall 1994). "Current Information on the Scope and Nature of Child Sexual Abuse.". Future of Children. 4 (2): 31–53.
  20. 1 2 Hobbs, Christopher James; Helga G. I. Hanks; Jane M. Wynne (1999). Child Abuse and Neglect: A Clinician's Handbook. Elsevier Health Sciences. p. 328. ISBN 0-443-05896-2. Child pornography is part of the violent continuum of child sexual abuse
  21. ↑ Claire Milner, Ian O'Donnel. (2007). Child Pornography: Crime, computers and society. Willan Publishing. p. 123. ISBN 1-84392-357-2.
  22. 1 2 Sheldon, Kerry; Dennis Howitt (2007). Sex Offenders and the Internet. John Wiley and Sons. p. 20. ISBN 0-470-02800-9. 'Child pornography is not pornography in any real sense; simply the evidence recorded on film or video tape - of serious sexual assaults on young children' (Tate, 1992, p.203) ... 'Every piece of child pornography, therefore, is a record of the sexual use/abuse of the children involved.' Kelly and Scott (1993, p. 116) ... '...the record of the systematic rape, abuse, and torture of children on film and photograph, and other electronic means.' Edwards(2000, p.1)
  23. 1 2 Klain, Eva J.; Davies, Heather J.; Hicks, Molly A.; ABA Center on Children and the Law (2001). Child Pornography: The Criminal-justice-system Response. National Center for Missing & Exploited Children. Because the children depicted in child pornography are often shown while engaged in sexual activity with adults or other children,they are first and foremost victims of child sexual abuse.
  24. 1 2 3 Wortley, Richard; Stephen Smallbone. "Child Pornography on the Internet". Problem-Oriented Guides for Police. No. 41: 17. The children portrayed in child pornography are first victimized when their abuse is perpetrated and recorded. They are further victimized each time that record is accessed.
  25. 1 2 Sheldon, Kerry; Dennis Howitt (2007). Sex Offenders and the Internet. John Wiley and Sons. p. 9. ISBN 0-470-02800-9. ...supplying the material to meet this demand results in the further abuse of children. Pictures, films and videos function as a permanent record of the original sexual abuse. Consequently, memories of the trauma and abuse are maintained as long as the record exists. Victims filmed and photographed many years ago will nevertheless be aware throughout their lifetimes that their childhood victimization continues to be exploited perversely.
  26. ↑ Agnes Fournier de Saint Maur (January 1999). "Sexual Abuse of Children on the Internet: A New Challenge for INTERPOL" (PDF). Expert Meeting on Sexual Abuse of Children, Child Pornography and Paedophilia on the Internet: an international challenge. UNESCO (United Nations Educational, Scientific and Cultural Organization).
  27. 1 2 3 "Sex and violence - Censorship - actor, film, movie, show, cinema, scene". Filmreference.com. Retrieved 2013-08-17.
  28. ↑ This Film Is Not Yet Rated. 2006.
  29. ↑ http://www.mpaa.org
  30. ↑ http://www.mpaa.org/film-ratings/
  31. ↑ Kauffmann, S. (1957) The Philanderer. Harmondsworth: Penguin Books "When first published in 1954, this book was the subject of an unsuccessful prosecution for obscene libel. Mr. Justice Stable's historic summing-up on that occasion is included as an appendix."
  32. ↑ The Obscene Publications Act rides again. "Girls Aloud case heads for court - net holds its breath" by John Ozimek, Posted in Law, 6 October 2008 11:26 GMT
  33. ↑ "Date set for internet 'obscene' publications trial. Man in court over 'Girls Aloud' story" by John Ozimek Posted in Law, 22 October 2008 14:05 GMT
  34. ↑ "Girls Aloud blogger cleared of obscenity after describing kidnap, rape and murder" by Daily Mail reporter. Last updated at 1:23 AM on 30 June 2009
  35. ↑ See T.W. Earp, 'The Paintings of DH Lawrence' in The New Statesman (London newspaper), 17 August 1929, p.578
  36. ↑ Norbert Lynton, Stass Paraskos (Mitcham: Orage Press, 2003) 7f
  37. ↑ "After a year out on loan Mapplethorpe book is set to return to library shelves". Archived from the original on 23 August 2006. Retrieved 6 March 2008.
  38. ↑ "FAQ: Buying Adult Films: Is it legal?". Melonfarmers.co.uk. Retrieved 2013-08-17.
  39. ↑ "UK | High Court blocks web porn sales". BBC News. 2005-05-23. Retrieved 2013-08-17.
  40. ↑ Criminal Code (R.S.C., 1985, c. C-46) (19 September 2014) Justice Laws Website. Retrieved 21 December 2014.
  41. ↑ "Child-less Pornography".
  42. ↑ "Regina v. Pecciarich". efc.ca. Retrieved 4 April 2015.
  43. ↑ Michael Lucas Implores Obama, Harper to Talk About Porn, AVN News, 20 February 2009.
  44. ↑ Lucas Porn Films Detained At Border, DNA magazine, 13 February 2009
  45. ↑ DJi -233 a 234- DL-002.848-1940 - Còdigo Penal - Ultraje Público ao Pudor (in Portuguese)
  46. ↑ A propósito dos crimes de ultraje público ao pudor - Paulo Queiroz (in Portuguese)
  47. ↑ Category: Ato Obsceno - Para Entender Direito - Folha Uol (in Portuguese)
  48. ↑ Saeed Kamali Dehghan (18 January 2012) "Iran confirms death sentence for 'porn site' web programmer" The Guardian. Retrieved 21 December 2014.

References

Further reading

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