Obscenity & the Law: A Primer

The First Amendment to the United States Constitution ensures the populace from having to fear governmental censorship of speech. The amendment as written states, in relevant part that: "Congress shall make no law…abridging the freedom of speech." What is speech? Recognizing the format of this magazine, it seems appropriate that an examination of speech relating to sex be performed. Sexual speech comes in various forms. There is the written speech, such as the Penthouse Forum. There is symbolic expression, i.e. pornographic videos depicting sexual intercourse. The First Amendment protects these forms of speech. But there is a form of sexual speech that falls outside of the constitutional protections. This type of speech is obscenity.

CyBarrister.com finds "obscenity to be a subset of pornography or sexually explicit speech." Legally, obscenity is defined by the 1973 U.S. Supreme Court decision in Miller v. California, 413 U.S. 15 (1973), which holds that obscenity is a form of speech that:

1. Appeals to the prurient interest, as judged against local community standards;

2. Depicts or describes sexual conduct in a patently offensive way; and

3. Lacks serious literary, artistic, political, or scientific value (SLAP value).

The three-pronged approach to defining speech as obscene applies two very different standards. The first two prongs of the test- prurience and patent offensiveness- are determined by referencing the contemporary community standards in the local area where criminal charges are brought. According to the Ethical Spectacle (www.spectacle.org), "obscenity law means that the speaker of speech deemed obscene, could go to prison for the listener's reaction or over reaction, which is largely separated from the actual intention of the speech itself." The remaining prong, whether the speech contains any scientific, literary, artistic or political value is judged by the "objective" reasonable person standard, not on a community standard limited by the locale of the charges. The problem is that Miller, like obscenity precedent before it, assumes that "obscenity is not speech and therefore, not protected by the First Amendment.

These standards apply equally to ordinary books and magazines as they do in cyberspace. Application of the Miller standard to global media (i.e. the internet) ensures that the standards of the most conservative communities rule the world. In U.S. v. Thomas, a Tennessee postal inspector dialed a BBS operated in California. This wily inspector then downloaded his fair share of pornographic material that was judged obscene under the local standards of the religious-right-bible-toting populous of Memphis, TN. Since the material was distributed to an open account in Tennessee, regardless of the fact that the BBS mainly served California residents, the Court ruled that the appropriate "community" for the determination of prurience and the patently offensive nature of the material was actually where the download occurred, not where it was distributed. The defendant's (as well as the ACLU, the Interactive Services Association, the Society for Electronic Access, and the Electronic Frontier Foundation) argued on appeal that the appropriate community was that of cyberspace, not Memphis, the Sixth Circuit Court of Appeals specifically rejected that mode of thinking in upholding the obscenity conviction. (See, U.S. v. Thomas 74 F. 3d 701 (6th Cir. 1996)) Thus, internet-porn purveyors beware; any material they make available could be judged obscene, not by the community in which they live, but by the local conservative community in which the material is received.

The Ethical Spectacle takes issue with the Court's opinion in Miller. By "holding obscenity not to be speech at all, the courts laid the ground for Miller's obvious illogicality. Miller defines expression as ‘not speech' if it is prurient and patently offensive, then throws logic to the winds with the SLAP prong of the test. Since anything with SLAP value is, by definition, protected by the First Amendment, the Miller test really states that: ‘Anything which is prurient and patently offensive is not speech, unless it has SLAP value, in which case it is speech'" and protected by the First Amendment.

In the Courtroom, speech that is evaluated for obscenity poses constitutional problems. A precursor to any criminal litigation is that a defendant is presumed innocent until proven guilty. The defendant need not present any evidence and the burden of proof rests solely on the state. An obscenity trial forces a defendant to prove material has SLAP value, when legally the state is required to demonstrate that the material in question lacks any SLAP value. The prosecutor can rely solely on the fact that the material in question is not speech and therefore not protected, provided the state proves it is prurient and patently offensive by their local standards. Once that is shown, the onus is placed on the defendant to prove the material has SLAP value, not on the state to show has no SLAP value.

Obscenity is not determined by the intent of the material, rather by the local standards of moralistic communities. If the Miller test is used, the global communication highway that is the Internet is in trouble. No safeguards are in place to prevent the aggressive and politically driven U.S. Attorney from operating a federal investigation into every porn-site on the web. Even if one image or document from a site is deemed obscene, harsh criminal and civil penalties are guaranteed. With "W" in office and John Ashcroft as his right hand legal eagle, obscenity laws are sure to be used for the purpose of conservative political points instead of protecting the public from exposure to that which is truly obscene.

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