The U.S. Supreme Court established the test that judges and juries use to determine whether matter is obscene in three major cases: Miller v. California, 413 U.S. 15, 24-25 (1973); Smith v. United States, 431 U.S. 291, 300-02, 309 (1977); and Pope v. Illinois, 481 U.S. 497, 500-01 (1987). The three-pronged Miller test is as follows:
Any material that satisfies this three-pronged test may be found obscene. Federal law prohibits the possession with intent to sell or distribute obscenity, to send, ship, or receive obscenity, to import obscenity, and to transport obscenity across state borders for purposes of distribution. Although the law does not criminalize the private possession of obscene matter, the act of receiving such matter could violate the statutes prohibiting the use of the U.S. Mails, common carriers, or interactive computer services for the purpose of transportation (See 18 U.S.C. § 1460; 18 U.S.C. § 1461; 18 U.S.C. § 1462; 18 U.S.C. § 1463). Convicted offenders face fines and imprisonment. It is also illegal to aid or abet in the commission of these crimes, and individuals who commit such acts are also punishable under federal obscenity laws. In addition, federal law prohibits both the production of obscene matter with intent to sell or distribute, and engaging in a business of selling or transferring obscene matter using or affecting means or facility of interstate or foreign commerce, including the use of interactive computer services. (See 18 U.S.C. § 1465; 18 U.S.C. § 1466). For example, it is illegal to sell and distribute obscene material on the Internet. Convicted offenders face fines and up to 5 years in prison. Moreover, Sections 1464 and 1468 of Title 18, United States Code, specifically prohibit the broadcast or distribution of obscene matter by radio communication or by cable or subscription television respectively. Convicted offenders under these statutes face fines and up to 2 years in prison. Obscenity Involving Minors Federal statutes specifically prohibit obscenity involving minors, and convicted offenders generally face harsher statutory penalties than if the offense involved only adults. Section 1470 of Title 18, United States Code, prohibits any individual from knowingly transferring or attempting to transfer obscene matter using the U.S. mail or any means or facility of interstate or foreign commerce to a minor under 16 years of age. Convicted offenders face fines and imprisonment for up to 10 years. In addition, Section 1466A of Title 18, United State Code, makes it illegal for any person to knowingly produce, distribute, receive, or possess with intent to transfer or distribute visual representations, such as drawings, cartoons, or paintings that appear to depict minors engaged in sexually explicit conduct and are deemed obscene. This statute offers an alternative 2-pronged test for obscenity with a lower threshold than the Miller test. The matter involving minors can be deemed obscene if it (i) depicts an image that is, or appears to be a minor engaged in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse and (ii) if the image lacks serious literary, artistic, political, or scientific value. A first time offender convicted under this statute faces fines and at least 5 years to a maximum of 20 years in prison. There are also laws to protect children from obscene or harmful material on the Internet. For one, federal law prohibits the use of misleading domain names, words, or digital images on the Internet with intent to deceive a minor into viewing harmful or obscene material (See 18 U.S.C. §§ 2252B, 2252C). It is illegal for an individual to knowingly use interactive computer services to display obscenity in a manner that makes it available to a minor less than 18 years of age (See 47 U.S.C. § 223(d) –Communications Decency Act of 1996, as amended by the PROTECT Act of 2003). It is also illegal to knowingly make a commercial communication via the Internet that includes obscenity and is available to any minor less than 17 years of age (See 47 U.S.C. § 231 –Child Online Protection Act of 1998). The standard of what is harmful to minors may differ from the standard applied to adults. Harmful materials for minors include any communication consisting of nudity, sex or excretion that (i) appeals to the prurient interest of minors, (ii) is patently offensive to prevailing standards in the adult community with respect to what is suitable material for minors, (iii) and lacks serious literary, artistic, political, or scientific value for minors. In addition to facing imprisonment and fines, convicted offenders of federal obscenity laws involving minors may also be required to register as sex offenders. Furthermore, in some circumstances, obscenity violations involving minors may also be subject to prosecution under federal child pornography laws, which yield severe statutory penalties (For more information, see Citizen´s Guide to U.S. Federal Child Pornography Laws).
The Miller test is the standard used by courts to define obscenity. It comes from the 1973 Supreme Court's 5-4 ruling in Miller v. California, in which Chief Justice Warren Burger, writing for the majority, held that obscene material is not protected by the First Amendment. This case is consistent with the Supreme Court's decision in Roth v. U.S. The First Amendment is the one that guarantees Americans’ freedoms. We can worship in any faith we choose, whenever we choose. The government cannot restrict these practices. We have the right to petition the government and to assemble. But the First Amendment is most commonly known as our right to freedom of speech and expression. Americans can speak their minds without fear of reprisal. The First Amendment reads like this: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Chief Justice Burger stated the Supreme Court's definition of obscenity: 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. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. To put it in layman's terms, the following questions must be answered:
Courts have traditionally held that the sale and distribution of obscene material are not protected by the First Amendment. In other words, you can speak your mind freely, including the distribution of printed materials, unless you're promoting or talking about something obscene based on the above standards. The guy standing next to you, an Average Joe, would be offended by what you've said or distributed. A sexual act is depicted or described. And your words and/or materials serve no other purpose but to promote this obscenity. The First Amendment applies only to disseminating pornography or obscene materials. It doesn't protect you if you share the materials or shout from the rooftop for all to hear. You can, however, quietly possess those materials for your own use and enjoyment because you also have a constitutional right to privacy. Although no amendment specifically states this, several amendments pay lip service to the issue of privacy. The Third Amendment protects your home against unreasonable entry, the Fifth Amendment protects you against self-incrimination and the Ninth Amendment generally supports your right to privacy because it upholds the Bill of Rights. Even if a right is not specifically stated in the first eight amendments, it’s protected if it’s alluded to in the Bill of Rights. |
What are the criteria for determining if something is obscene according to the Supreme Court?
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