Obscenity in criminal law deals with materials deemed highly offensive and lacking social value. The Miller test, established in 1973, provides a three-part standard for determining obscenity, considering prurient interest, offensive depictions, and lack of serious value.

Obscenity is not protected by the First Amendment, but regulating it raises free speech concerns. Courts struggle to balance public morals with expression rights. Federal and state laws prohibit obscene material distribution, while local ordinances may restrict adult businesses through zoning.

Obscenity definition and standards

• Obscenity is a legal term that refers to materials or expressions that are considered highly offensive, sexually explicit, and lacking in social value
• Determining what qualifies as obscene has been a complex and evolving issue in criminal law, with courts struggling to balance free speech rights with community standards of decency

Miller test for obscenity

• Established by the Supreme Court in Miller v. California (1973) as a three-part test for determining whether material is obscene
• Considers whether the average person, applying contemporary community standards, would find that the work appeals to the prurient interest
• Examines if the work depicts or describes sexual conduct in a patently offensive way
• Assesses whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

Prurient interest requirement

• Prurient interest refers to a morbid, degrading, and unhealthy interest in sex or nudity
• Material must appeal to this prurient interest to be considered obscene under the Miller test
• Mere nudity or sexual content alone is not sufficient to meet this requirement (Jenkins v. Georgia)

Patently offensive material

• Patently offensive material is that which goes beyond the customary limits of candor in describing or representing sexual matters
• Offensiveness is determined by applying contemporary community standards, which can vary by location and change over time
• Examples of potentially patently offensive material include explicit depictions of sexual acts, lewd exhibition of genitals, or extreme violence in a sexual context

Socially redeeming value

• The Miller test requires that obscene material, taken as a whole, must lack serious literary, artistic, political, or scientific value
• This "saving clause" protects works that may contain offensive elements but still have some social importance or merit
• Examples of works with redeeming value despite controversial content include James Joyce's "Ulysses" and Robert Mapplethorpe's photography

Obscenity vs protected speech

• Obscenity is one of the few categories of speech that is not protected by the First Amendment's guarantee of free expression
• Courts have struggled to balance the government's interest in regulating obscene materials with the constitutional right to free speech

First Amendment considerations

• The First Amendment prohibits the government from restricting speech based on its content or viewpoint
• However, the Supreme Court has held that obscenity is not protected speech because it lacks social value and can be regulated to protect public morals (Roth v. United States)
• Distinguishing between obscenity and protected sexual expression has been a challenging and sometimes subjective process for courts

Prior restraint on speech

• Prior restraint refers to government action that prohibits speech before it occurs, such as requiring advance approval for publications
• The First Amendment generally forbids prior restraints on speech, even for allegedly obscene materials (Near v. Minnesota)
• Exceptions may apply for extreme cases of national security or imminent lawless action, but prior restraints on obscenity are presumptively unconstitutional

Chilling effect concerns

• Regulating obscenity can have a chilling effect on free speech by discouraging people from expressing themselves out of fear of prosecution
• Vague or overbroad obscenity laws may cause artists, writers, and publishers to self-censor and avoid controversial topics
• The threat of criminal charges or civil lawsuits can deter the production and distribution of materials that may have social value but risk being deemed obscene

Obscenity laws and regulations

• Obscenity is regulated at the federal, state, and local levels through a variety of criminal statutes and civil ordinances
• These laws aim to protect public morals, prevent the exploitation of minors, and regulate the distribution of sexually explicit materials

Federal obscenity statutes

• Federal law prohibits the interstate transportation, distribution, and sale of obscene materials (18 U.S.C. §§ 1461-1465)
• Penalties can include fines and imprisonment for up to five years for a first offense
• The Child Online Protection Act (COPA) sought to restrict minors' access to harmful online content but was struck down as unconstitutional (Ashcroft v. ACLU)

State and local ordinances

• States and municipalities can enact their own obscenity laws within constitutional limits
• These laws may define obscenity differently or have additional restrictions on distribution, display, or zoning
• For example, some states have "harmful to minors" laws that prohibit the sale of sexually explicit materials to those under 18 (Ginsberg v. New York)

Zoning restrictions for adult businesses

• Local governments can use zoning ordinances to regulate the location and operation of adult businesses like strip clubs, adult bookstores, and movie theaters
• These ordinances aim to prevent the secondary effects of adult businesses, such as crime, decreased property values, and neighborhood deterioration
• Zoning restrictions must be content-neutral and narrowly tailored to serve a substantial government interest (City of Renton v. Playtime Theatres)

Prosecution of obscenity cases

• Prosecuting obscenity cases presents unique challenges for law enforcement and prosecutors due to the subjective nature of obscenity standards and the need to prove criminal intent

Proving obscenity beyond a reasonable doubt

• Prosecutors must prove each element of the Miller test beyond a reasonable doubt to secure an obscenity conviction
• This requires presenting evidence of the material's prurient appeal, patent offensiveness, and lack of redeeming value
• Expert testimony, community surveys, and comparisons to similar materials may be used to establish obscenity

Challenges in defining community standards

• The Miller test's reliance on contemporary community standards can lead to inconsistent results across different jurisdictions
• Prosecutors must present evidence of the relevant community's attitudes towards sexually explicit material, which can be difficult to quantify
• In the internet age, defining the applicable community has become even more complex, as online material can be accessed from anywhere

Defenses to obscenity charges

• Defendants in obscenity cases may raise various defenses, such as arguing that the material has redeeming social value or that it does not meet the Miller test
• The "knowingly" requirement in many obscenity statutes means that defendants must have had knowledge of the material's obscene nature
• Other potential defenses include mistake of fact, lack of commercial distribution, or that the material was accessed in a private setting

Obscenity in different media

• Obscenity standards have been applied to various forms of media, each presenting unique challenges and considerations

Print materials and books

• Historically, print materials were the primary focus of obscenity prosecutions, with cases like United States v. One Book Called "Ulysses" (1933) setting early precedents
• Modern obscenity cases involving books are relatively rare, as most publishers and booksellers self-regulate to avoid potentially obscene content
• Erotic literature and instructional materials on sexuality may still face scrutiny, particularly if marketed to minors

Visual arts and sculpture

• Visual artworks depicting nudity or sexual themes have been the subject of obscenity controversies, such as the Robert Mapplethorpe trial in 1990
• Museums, galleries, and artists may face pressure from public officials or community groups to remove or censor allegedly obscene works
• The Miller test's exemption for works with serious artistic value has provided some protection for controversial art

Film, video, and photography

• Motion pictures have been subject to obscenity laws since the early 20th century, with the Hays Code and later the MPAA rating system providing industry self-regulation
• Pornographic films and videos are the most common targets of modern obscenity prosecutions, particularly those involving extreme or violent content
• The rise of home video and streaming platforms has made it easier to distribute and access potentially obscene material, complicating enforcement efforts

Internet and digital content

• The internet has posed new challenges for obscenity law, as online content can be easily shared, copied, and accessed from anywhere in the world
• Websites, social media platforms, and online marketplaces may be held liable for hosting or distributing obscene material, leading to content moderation and removal policies
• Obscenity prosecutions involving digital content often focus on extreme pornography, child exploitation materials, or nonconsensual intimate images

Societal impact of obscenity

• The debate over obscenity regulation reflects broader societal tensions between individual freedom, public morality, and gender equality

Moral and ethical considerations

• Supporters of obscenity laws argue that they protect public morals, prevent the corruption of youth, and uphold community standards of decency
• Opponents contend that obscenity is a subjective and moralistic concept that infringes on free expression and personal autonomy
• The changing nature of social attitudes towards sex and nudity over time complicates the application of obscenity standards

Feminist perspectives on pornography

• Some feminist scholars and activists argue that pornography is inherently harmful to women, objectifying them and contributing to a culture of sexual violence
• Anti-pornography feminists like Catharine MacKinnon and Andrea Dworkin have advocated for laws treating pornography as a civil rights violation against women
• Other feminists defend women's right to participate in and consume pornography as a matter of sexual agency and freedom of choice

Balancing free expression and public morality

• The ongoing debate over obscenity regulation reflects the difficulty of balancing competing social values and individual rights
• Courts and policymakers must weigh the importance of free speech and artistic expression against concerns about public morality, child protection, and gender equality
• As social attitudes continue to evolve and new forms of media emerge, the legal and ethical boundaries of obscenity will likely remain a subject of ongoing discussion and dispute