Obscenity

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An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious. The term is also applied to an object that incorporates such a statement or displays such an act.

In a legal context, the term obscenity is most often used to describe expressions (words, images, actions) of an explicitly sexual nature. The word can be used to indicate a strong moral repugnance, in expressions such as "obscene profits", "the obscenity of war", etc. It is often replaced by the word salaciousness.

According to Merriam-Webster online dictionary, that which is obscene (i.e.: an obscenity) is quite simply defined as repulsive, or disgusting to the senses.^[1]

The definition of what exactly constitutes an obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities. Many cultures have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions: usually including, but not limited to, pornographic material. As such censorship restricts freedom of expression, crafting a legal definition of obscenity presents a civil liberties issue.

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. The Supreme Court has found that obscenity is an exception to the constitutional rights under the First Amendment, and is usually limited to content that directly refers to explicit sexual acts that are publicly accessible, though it has at times encompassed other subject matters, such as spoken and written language that can be publicly transmitted and received by the general public.

Legally, a distinction is made between socially permitted material and discussions that the public can access and obscenity, access to which should be denied. There does exist a classification of those acceptable materials and discussions that the public should be allowed to engage in, and the access to that same permitted material—which in the areas of sexual materials ranges between the permitted areas of erotic art (which usually includes "classic nude forms" such as Michelangelo's David statue) and the generally less respected commercial pornography. The legal distinction between artistic nudity, and permitted commercial pornography (which includes sexual penetration) that are deemed as "protected forms of speech" versus "obscene acts", which are illegal acts and separate from those permitted areas, are usually separated by the predominant culture appreciation regarding such. However, no such specific objective distinction exists outside of legal decisions in federal court cases where a specific action is deemed to fit the classification of obscene and thus illegal. The difference between erotic art and (protected) commercial pornography, vs. that which is legally obscene (and thus not covered by 1st Amendment protection), appears to be subjective to the local federal districts inside the United States and the local moral standards at the time.

In fact, federal obscenity law in the U.S. is highly unusual in that not only is there no uniform national standard, but rather, there is an explicit legal precedent (the "Miller test", below) that all but guarantees that something that is legally obscene in one jurisdiction may not be in another. In effect, the First Amendment protections of free speech vary by location within the U.S., and over time. With the advent of Internet distribution of potentially obscene material, this question of jurisdiction and community standards has created significant controversy in the legal community. (See United States v. Thomas, 74 F.3d 701 (6th Cir. 1996))

Even at the federal level, there does not exist a specific listing of which exact acts are to be classified as obscene outside of the legally determined court cases. Title 18, chapter 71 of the USC deals with obscenity, the workings out of the law described in this article, most notably the aforementioned Miller test.

Former Justice Potter Stewart of the Supreme Court of the United States, in attempting to classify what material constituted exactly "what is obscene," infamously 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]

However, 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]

Justice Douglas wrote a dissenting opinion that eloquently expressed his dissatisfaction with the ruling:

The idea that the First Amendment permits government to ban publications that are 'offensive' to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed 'to invite dispute,' to induce 'a condition of unrest,' to 'create dissatisfaction with conditions as they are,' and even to stir 'people to anger.' The idea that the First Amendment permits punishment for ideas that are 'offensive' to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to 'offensive' as well as to 'staid' people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard 'offensive' gives authority to government that cuts the very vitals out of the First Amendment. As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment—and solely because of it—speakers and publishers have not been threatened or subdued because their thoughts and ideas may be 'offensive' to some. ^[4]

In U.S. legal texts, therefore, the question of "obscenity" presently always refers to this "Miller test obscenity". As articulated in several sections of 18 USC Chapter 71, the Supreme Court has ruled that it is constitutional to legally limit the sale, transport for personal use or other transmission of obscenity. However, it has ruled unconstitutional the passing of law concerning personal possession of obscenity per se. Federal obscenity laws at present apply to inter-state and foreign obscenity issues such as distribution; intrastate issues are for the most part still governed by state law. "Obscene articles... are generally prohibited entry" to the United States by U.S. Customs and Border Protection.^[5]

At present, there are only two legally protected areas of explicit commercial pornography. The first is "mere nudity" as upheld in "Jenkins v. Georgia, 418 U.S. 153 (1974)" whereby the film Carnal Knowledge was deemed not to be obscene under the constitutional standards announced by Miller. As declared by the judge at trial "The film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards." This was upheld time and again in later cases including "Erznoznik v. City of Jacksonville FL, 422 U.S. 205 (1975)" in which the city of Jacksonville stated that showing films containing nudity when the screen is visible from a public street or place is a punishable offense. The law was determined to be invalid as it was an infringement of First Amendment rights of the movie producer and theatre owners. The second is single male to female vaginal-only penetration that does NOT show the actual ejaculation of semen, sometimes referred to as "soft-core" pornography wherein the sexual act and its fulfillment (orgasm) are merely implied to happen rather than explicitly shown.

In June 2006, the U.S. Federal government in the district of Arizona brought a case against JM Productions of Chatsworth, California in order to classify commercial pornography that specifically shows actual semen being ejaculated as obscene. The four films that were the subject of the case are entitled "American Bukkake 13", "Gag Factor 15", "Gag Factor 18" and "Filthy Things 6". The case also includes charges of distribution of obscene material (a criminal act under 18 USC § 1465 - "Transportation of obscene matters for sale or distribution") against Five Star DVD for the extra-state commercial distribution of the JM Productions films in question. The case was brought to trial on October 16, 2007. At the first date of trial, the US DoJ decided not to pursue the JM obscenity case any further, leaving the matter without resolution.^[6] While the US DoJ decided to abandon its legal pursuit of the JM productions, U.S. District Court Judge Roslyn O. Silver has forced the legal case against Five Star DVD distributors to continue, whereby the legal classification of whether "sperm showing through ejaculation" is an obscene act and thus illegal to produce or distribute will be definitely answered in order to convict Five Star of being guilty of "18 USC 1465 - Transportation of obscene matters for sale or distribution".^[7] The jury found that Five Star Video LC and Five Star Video Outlet LC were guilty of "18 USC 1465 - Transportation of obscene matters for sale or distribution" for having shipped JM Productions' film "Gag Factor 18".^[8] However, the specific content in that film that the jury deemed to actually fulfill the legal qualification of being "obscene" has not been specifically stated at this point.

Obscenity v. indecency

Main article: Indecency

The differentiation between indecent and obscene material is a particularly difficult one, and a contentious First Amendment issue that has not fully been settled. Similarly, the level of offense (if any) generated by a profane word or phrase depends on region, context, and audience.

Non image-based obscenity cases in the USA

While most of the obscenity cases in the United States have revolved around images and films, there have been many cases that dealt with textual works as well.

1st edition cover of Henry Miller's Tropic of Cancer

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."

However, the book was labeled "erotica" in the 1965 case (206 NE 2d 403) and there a division between erotica and obscenity was made—not all items with erotic content were automatically obscene. Further, the 1965 "John Cleland's 'Memoirs'" case added a further qualification for the proving of "obscenity" -- the work in question had to inspire or exhibit "prurient" (that is, "shameful or morbid") interest.

In 1964, the U.S. Supreme Court, in Grove Press, Inc. v. Gerstein, cited Jacobellis v. Ohio (which was decided the same day) and overruled state court findings of obscenity against Henry Miller's Tropic of Cancer. A copyright infringing "Medusa" edition of the novel was published in New York City in 1940 by Jacob Brussel; its title page claimed its place of publication to be Mexico. Brussel was eventually sent to jail for three years for the edition,^[9] a copy of which is in the Library of Congress.

In September 2005 an FBI "Anti-Porn Squad" was formed, which has initially targeted for prosecution websites such as Red Rose Stories (www.red-rose-stories.com, now defunct), one of many sites providing text-only fantasy stories.^[10] Other websites such as BeautyBound.com have closed themselves down despite not being targeted, due to these risks and legislative burdens.^{[citation needed]}

Past standards

Symbol of the "New York Society for the Suppression of Vice", advocating book-burning

These standards were once used to determine exactly what was obscene. All have been invalidated, overturned, or superseded by the Miller Test.

• 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))

Under FCC rules and federal law, radio stations and over-the-air television channels cannot air obscene material at any time and cannot air indecent material between 6 a.m. and 10 p.m.: language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.

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.

U.S. activity and court cases dealing with obscenity

• In Roth v. United States (1957), the Supreme Court held that a published work is obscene if it a) appeals predominantly to prurient interests; b) is patently offensive by contemporary community standards; and, c) is utterly without redeeming social value. This definition was not very practical when identifying what should be censored.

• 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 v. Pacifica (1978) (external link) better known as the landmark "seven dirty words" case. In that 1978 ruling, the Justices 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."^[11]

• In Reno v. ACLU (1997), the Supreme Court struck down indecency laws applying to the Internet, which casts serious doubt on Congress's ability to pass such wide-ranging regulation banning "indecent" speech on communications technologies that enter the home.

• In State v. Brenan (1998), a jury in St. Tammany Parish, convicted Christine Brenan of "promoting obscene devices". They gave her a two-year suspended sentence, five years of probation and a fine of $1,500. The state Court of Appeals later struck down the law, ruling it unconstitutionally vague, a ruling affirmed by the state supreme court (772 So.2d 64, 2000).

• The 1999 Law and Government of Alabama (Ala. Code. § 13A-12-200.1) made it "unlawful to produce, distribute or otherwise sell sexual devices that are marketed primarily for the stimulation of human genital organs." Alabama claimed that these products were obscene, and that there was "no fundamental right to purchase a product to use in pursuit of having an orgasm. The ACLU challenged the statute, which was overturned in 2002. A federal judge reinstated the law in 2004. The matter was appealed to the US Supreme Court who in their refusal to hear the case has determined that the decision of the lower court is enforceable within the state of Alabama. [2] Other states have similar laws regarding such product sales within their borders.

• In 2000, Larry Peterman of Provo, Utah was charged with selling obscene material at his chain of video stores. A jury found him not guilty as the defense showed that residents of the town were disproportionately large consumers of the very materials Peterman was selling. [3]

• In 2005, the United States Department of Justice created the Obscenity Prosecution Task Force to investigate and prosecute producers and distributors of hardcore pornography at the urging of social conservative groups.^[12][13] In spring 2011 the task force was folded into the Child Exploitation and Obscenity Section in the Department of Justice's Criminal Division.^[14]

• On January 20, 2005, in United States v. Extreme Associates, U.S. District Judge Gary Lancaster of western Pennsylvania initially ruled that the statutes against the obscenity laws were unconstitutionally vague and thus dismissed the case. However Judge Lancaster's decision was overturned on Department of Justice's appeal to the United States Court of Appeals for the Third Circuit, which reinstated federal obscenity charges against Extreme Associates stating that Judge Lancaster overstepped his authority. The Third Circuit Court ruled that what was protected was "a right to a protective zone ensuring the freedom of a man's inner life", and noting a previous ruling in which higher courts "declined to equate the privacy of the home relied on in Stanley with a 'zone of privacy' that follows a distributor or a consumer of obscene materials wherever he goes." It also ruled that the lower court erred in attempting to overturn a Supreme Court ruling, which was reserved for the Supreme Court itself to do. The Court of Appeals denied Extreme Associates' constitutional challenge and held that the federal statutes regulating the distribution of obscenity do not violate any constitutional right to privacy. The case has been remanded back to Lancaster's court but as a jury decision not a bench decision (judge only decision) whereby the jury could make the same decision and rule that the law itself is flawed and should be removed, rather than just Extreme Associates and its products merely does not meet the stated criteria of being "obscene". On March 11, 2009 Extreme Associates and its owners plead guilty to the reinstated obscenity charges to avoid trial effectively shutting down the company. Extreme Associates also apparently took its website down concurrent with the plea.[1]

• On or around October 3, 2005, Karen Fletcher operating the Red Rose Stories website which was text based only erotic stories of various intensity, was raided in the owner's absence by the FBI on the first non image based obscenity charges in the USA in several decades. The website was targeted because of the availability of sex fantasy stories involving children. [4] Fletcher posted an open letter on the website before its closing in mid 2006, stating that "I am being charged with 'OBSCENITIES' and face a minimum term of 3 years in a federal prison. Our stories are NOT protected speech. Please, please, be careful out there. When it comes to free speech SEX STORIES are NOT covered. The ONLY legal sex stories are those that involve a man and a woman, consenting to MISSIONARY POSITION SEX, in a dark room ... They are trying to say fantasy stories are illegal." [5]. Also, "it appears the Porn Squad has been told that the best possibility of prosecution includes golden showers, scat ... and BDSM along with other fringe fetishes... [the US] government is not targeting kiddie porn only" [6]. On September 3, 2007, Fletcher's request to have the obscenity charges against her dismissed was denied by Federal U.S. District Judge Joy Flowers Conti and will proceed into actual jury trial [7]. Fletcher's obscenity trial was scheduled to begin around April 2008. On May 19, 2008 she announced that she would be pleading guilty to six counts of online distribution of obscenity.^[15]

• As noted on Truetales.org:

1. "Beginning in late September 2005, a number of Websites containing SM material chose to delete that material or shut down, in response to the information in the Washington Post article. Among the Websites to censor themselves have been atruerose.com, kinkygurl.com, leatherquest.com, suicidegirls.com, UnderMySkirt.org, and three related Websites, houseofdesade.org, grandpadesade.com, and realbdsm.com. Midori's BeautyBound.com shut down as well, because of other U.S. legislation against erotic material."
2. "According to various media sources, on October 7, 2005, the Webmaster of Nowthatsfuckedup.com, a Website for user-submitted photos, was arrested for obscenity... after his Website received national attention for permitting U.S. soldiers overseas to post pictures showing war dead. There is no indication that the FBI was involved in this case."^{[16][17][18][19][20]}

• In April 2006, the four main US television networks and some 800 affiliated stations, sued the Federal Communications Commission which had recently increased in great measure both the strictness of its obscenity rules, and the penalties associated with sexual language. The networks claim that the FCC outstepped both its authority and precedent, that the old rules were drafted for a time when expectations were tighter and choice more limited, that they are hindered by rules not applicable to the hundreds of other stations available now, and that the changes were unconstitutional. [8]

• Paul Little, aka Max Hardcore, was found guilty on June 5, 2008 on all 10 counts of distribution of obscene material through physical and electronic means.[9] His company Max World Entertainment was also found guilty on 10 related charges. At sentencing Little was sentenced to 46 months in prison and fines of more than $1.4 million.[10] Little was released from government custody on July 19, 2011.^[21]

• In 2008 Ira Isaacs was brought to trial in Los Angeles, California on federal obscenity charges for videos featuring scatology and bestiality.^[22] On June 11, it was discovered that the judge presiding over the case, Alex Kozinski, had posted controversial material to his own website,^[23] prompting Kozinski to declare a mistrial on June 13.^[24] After a failed double jeopardy motion, Isaacs was set to be tried on the same charges starting in May 2011 but the trial was delayed when prosecutors added further obscenity charges.^[25] As of November 2011, Isaacs' trial is not expected to begin until next year. ^[26]

• American Booksellers Foundation for Free Expression v. Strickland, 560 F.3d 443 (6th Cir. 2009), is a challenge to an Ohio statute that sought to prohibit the dissemination or display to juveniles of certain sexually-explicit materials or performances. The Sixth Circuit panel declined to resolve the constitutional issue but, instead, certified two questions to the Ohio Supreme Court regarding the interpretation of the statute. The Ohio Supreme Court answered both questions affirmatively and placed a narrowing construction on the statute. Judge Walther Rice of the Southern District of Ohio rejected plaintiffs' claim that the definition of "material harmful to minors" was overbroad. However, he agreed with plaintiffs' contention that provisions of the statute regulating the dissemination of material over the internet unconstitutionally restricted protected speech between adults.

Criticism

Obscenity law has been criticized in the following areas:^[27]

• Federal law forbids obscenity in certain contexts (such as broadcast)^[28], however the law does not define the term.
• 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. Thus, this law confers no new rights, and is in fact, null and void.
• 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).

It should be noted that in light of the recent decision of the en banc decision of the Third Circuit Court of Appeals, as brought by Judge Lancaster in the original US vs. Extreme Associates case, only the US Supreme Court is allowed to revise its earlier decision that established the Miller decision.

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

Public funding/ public places

Congress passed a law in 1990 that required such organizations such as the National Endowment of the Arts (NEA) and National Associations of Artists Organizations (NAAO) to abide by general decency standards for the "diverse beliefs and values of the American public."^[29]

In 1998, Congress made a decision in the case of National Endowment for the Arts vs. Karen Finley, which upheld the general standards and decency law within the United States.

Government owned exhibition spaces are available under the Supreme Court's "public forum" doctrine. This doctrine explains that citizens within the United States have access to display in such public places such as lobbies of public buildings, theatrical productions, etc.

Even with this law in place it is hard for artists who have addressed sexually explicit work in work because of complaints which are generally in the form of "inappropriate for children" or seen as a form of "sexual harassment." Therefore the arts works are removed and at times there are official "no nudity" policies that are put in place.^[30]

When these decisions are taken to court on account of free expression the venues are often looked at to see if they are an actual "designated public forum." If it is then public officials have violated the First Amendment rights on the individuals. The other side is if the court finds that there is "no designated public forum" where government officials have the right to exclude and or censor the work.^[30]

Additional restrictions on sexual expression

Lili St. Cyr on stage (showing pasties)

In the Miller decision the use of the words "contemporary community standards" means that the law evolves along with social mores and norms. This has been shown throughout the booming business of the pornography industry along with commercial pornography by people such as amateurs and publishers of personal websites on the World Wide Web. Indirect government control such as restrictive zoning of adult video stores and nude dancing were put in place because obscenity convictions were harder to come by and not protected by the First Amendment. Similarly a set of rules was put in place to control erotic dancing, where legal, so that all dancers must either wear "pasties" or "g-strings" as shown in the 1991 case of Barnes v. Glen Theatre.^[29]

State laws

The laws on pornography are regulated by the state, meaning that there is not a national law for pornography. State laws on internet porn are recently expanding with more and more states regulating the age limits to purchase porn. Many states already have restrictions on buying books and magazines of porn, but with the recent increase in technology, states have been now restricting the laws on internet porn. Between 1995 and 2002, almost a fifth of states were preparing bills to control internet pornography. It is also against the law to transmit any of these materials from internet or literature to a minor and if caught, it would lead to prosecution.^{[citation needed]}

Censorship in schools, universities, and libraries

Schools, universities, and libraries receive government funds for many purposes, and some of these funds go to censorship of obscenity in these institutions. There are a few different ways in which this is done. One way is by not carrying pornographic or what the government deems obscene material in these places; another is for these places to purchase software that filters the internet activity on campus. An example is the federal "Children's Internet Protection Act, or CIPA". This mandates that all schools and libraries receiving federal aid for internet connections install a "technology protection measure" (filter) on all computers, whether used by children or adults. There are some states that have passed laws mandating censorship in schools, universities, and libraries even if they are not receiving government aid that would fund censorship in these institutions. These include Arizona, Kentucky, Michigan, Minnesota, South Carolina, and Tennessee. Twenty more states were considering such legislation in 2001–2002.^[31]

Child pornography

Main article: Child pornography

Child pornography refers to images or films (also known as child abuse images^[32][33][34]) and in some cases writings^[34][35][36] depicting sexually explicit activities involving a child; as such, child pornography is a record of child sexual abuse.^{[37][38][39][40][41][42]} Abuse of the child occurs during the sexual acts which are recorded in the production of child pornography,^{[37][38][40][41][42][43][44]} 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."^[42][43]

Child pornography is widely considered extremely obscene.

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.^[45]

United Kingdom

See also: English criminal law#Offences against public morals and public policy

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.^[46]

The Criminal Justice and Immigration Act 2008 prohibits the possession of "extreme pornography". This has included the first film to show pubic hair (Antonioni's Blowup, 1966); the first film to depict full frontal nudity (the Swedish production Puss och Kram); W.R. - Misterije organizma [W.R.—Mysteries of the Organism], 1971); and the first theatrically distributed film to depict the act of fellatio (Intimacy, 2001).^[45]

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.^[45]

In 2008, the UK prosecuted a man for writing a fictional sex story.^[47][48] In 2009, the case was dropped by the crown prosecution service (CPS) before it reached trial.^[49]

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.^[45]

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", [12] 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"^[50] however the case was dismissed in 1995.^[51]

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".^[52][53]

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 locale 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. [13]

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

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. ^ FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code
5. ^ U.S. Customs and Border Protection Form 6059B, January 2004
6. ^ http://www.xbiz.com/news/85242
7. ^ http://www.avn.com/index.cfm?objectID=AED9F76F-9A7E-F9FE-EB1C05B752B5F153
8. ^ http://business.avn.com/articles/5859.html
9. ^ Brottman, Mikita (2004) Funny Peculiar: Gershon Legman and the psychopathology of humor. Hillsdale, New Jersey: Analytic Press, p. 6
10. ^ Ward, Paula Reed (2008-08-07) Woman pleads guilty to obscenity for child-sex story site. Pittsburgh Post-Gazette Retrieved 2011-05-08.
11. ^ Hudson, David (1998-10-28). "Wisconsin high court could strike down obscenity law". First Amendment Center. http://www.firstamendmentcenter.org/news.aspx?id=9446. Retrieved 2011-01-13. 
12. ^ Glover, Scott (June 9, 2008). Upcoming trial will see hours of hard-core fetish pornography. Los Angeles Times
13. ^ Kay, Julie (August 30, 2005). U.S. Attorney's Porn Fight Gets Bad Reviews.
14. ^ Eric Holder accused of neglecting porn fight. Politico (April 16, 2011), accessed June 6, 2011
15. ^ [1] Xbiz article "Retrieved 19 May 2008"
16. ^ http://www.rollingstone.com/news/story/8878187/casualty_of_porn
17. ^ http://www.polksheriff.org/NewsRoom/Pages/847.aspx
18. ^ "War Dead Photo Probe Inconclusive". CBS News. September 28, 2005. http://www.cbsnews.com/stories/2005/09/28/iraq/main887976.shtml. 
19. ^ "US probes Iraq net body pictures". BBC News. September 28, 2005. http://news.bbc.co.uk/2/hi/americas/4289518.stm. 
20. ^ "CNN.com - Web site: U.S. troops traded Iraq photos for porn access - Sep 28, 2005". CNN. http://www.cnn.com/2005/US/09/28/web.photos/index.html. 
21. ^ "Federal Bureau of Prisons". http://www.bop.gov/iloc2/InmateFinderServlet?Transaction=IDSearch&needingMoreList=false&IDType=IRN&IDNumber=44902-112. 
22. ^ Daily News Wire Services (June 9, 2008). Jury selection to start in federal obscenity case. LA Daily News
23. ^ USLaw.com (2008-08-11). "What "Stuff" was on Judge Kozinski’s Personal Website?". USLaw.com's Celebrity Justice. http://www.uslaw.com/pop/what-stuff-was-on-judge-kozinskis-personal-website/?p=121. 
24. ^ Mistrial Declared in Obscenity Case Involving Controversial Judge | Threat Level from Wired.com
25. ^ Kernes, Mark (Apr 19th, 2011). "Are New Isaacs Indictments A Response to MIM Pressure?". avn.com (Adult Video News). http://business.avn.com/articles/legal/Are-New-Isaacs-Indictments-A-Response-to-MIM-Pressure-433088.html. Retrieved 2011-11-08. 
26. ^ Pardon, Rhett (Jun 14 2011). "Isaacs Prosecutors Plan on Calling 8 Forensics Experts". XBIZ Newswire (XBIZ.com). http://newswire.xbiz.com/view.php?id=135088. Retrieved 2011-11-08. 
27. ^ Huston, William: Under Color of Law, Obscenity vs. the First Amendment, Nexus Journal, Vol 10 (2005): 75:82."
28. ^ http://www.fcc.gov/guides/obscenity-indecency-and-profanity
29. ^ ^{a b} http://www.fepproject.org
30. ^ ^{a b} Christina Cho, Kim Commerato, & Marjorie Heins, Free Expression in Arts and Funding: A Public Policy Report (NY: FEPP, 2003), pp. 38–39,
31. ^ http://aclu.org/issues/cyber/hmcl.html
32. ^ Wortley, Richard; Stephen Smallbone (2006). Situational Prevention Of Child Sexual Abuse, Volume 19 of Crime prevention studies. Criminal Justice Press. p. 192. ISBN 1881798615. 
33. ^ Sanderson, Christiane (2004). The seduction of children: empowering parents and teachers to protect children from child sexual abuse. Jessica Kingsley Publishers. p. 133. ISBN 184310248X. 
34. ^ ^{a b} Akdeniz, Yaman (2008). Internet child pornography and the law: national and international responses. Ashgate Publishing, Ltd.. p. 11. ISBN 0754622975. 
35. ^ "Definition of 'Child Pornography'". Criminal Code of Canada, Section 163.1. Electronic Frontier Canada. 2004. http://www.efc.ca/pages/law/cc/cc.163.1.html. 
36. ^ "Sharpe Not Guilty of Possessing Written Child Pornography". CBC News. March 26, 2002. http://www.cbc.ca/canada/story/2002/03/26/sharpe020326.html. 
37. ^ ^{a b} Finkelhor, David. "Current Information on the Scope and Nature of Child Sexual Abuse.". Future of Children v4 n2 (Sum-Fall 1994): p31–53. http://eric.ed.gov:80/ERICWebPortal/custom/portlets/recordDetails/detailmini.jsp?_nfpb=true&_&ERICExtSearch_SearchValue_0=EJ497143&ERICExtSearch_SearchType_0=no&accno=EJ497143. 
38. ^ ^{a b} 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 0443058962. ""Child pornography is part of the violent continuum of child sexual abuse"" 
39. ^ Claire Milner, Ian O'Donnel. (2007). Child Pornography: Crime, computers and society. Willan Publishing. pp. p123. ISBN 1843923572. 
40. ^ ^{a b} Sheldon, Kerry; Dennis Howitt (2007). Sex Offenders and the Internet. John Wiley and Sons. pp. p20. ISBN 0470028009. "'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)" 
41. ^ ^{a b} Klain, Eva J.; Heather J. Davies, Molly A. Hicks, 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." 
42. ^ ^{a b c} Wortley, Richard; Stephen Smallbone. "Child Pornography on the Internet". Problem-Oriented Guides for Police No. 41: p17. "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." 
43. ^ ^{a b} Sheldon, Kerry; Dennis Howitt (2007). Sex Offenders and the Internet. John Wiley and Sons. pp. p9. ISBN 0470028009. "...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." 
44. ^ 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). http://unesdoc.unesco.org/images/0011/001147/114734eo.pdf. 
45. ^ ^{a b c d} http://www.filmreference.com/encyclopedia/Academy-Awards-Crime-Films/Censorship-SEX-AND-VIOLENCE.html
46. ^ 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."
47. ^ 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
48. ^ "Date set for internet 'obscene' publications trial. Man in court over 'Girls Aloud' story" by John Ozimek Posted in Law, 22nd October 2008 14:05 GMT
49. ^ "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
50. ^ Child-less Pornography by Chad Skelton id Magazine January 25, 1996
51. ^ Regina v. Pecciarich (Indexed as: R. v. Pecciarich) Ontario Court (Provincial Division) Sparrow Prov. Div. J. April 6, 1995
52. ^ Michael Lucas Implores Obama, Harper to Talk About Porn, AVN News, February 20, 2009.
53. ^ Lucas Porn Films Detained At Border, DNA magazine, February 13, 2009

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.[14]
• 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

• 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. [15]
• 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