Obscenity Laws

By , Attorney · UC Law San Francisco
Updated May 26, 2023

Not many legal concepts reduce Supreme Court Justices to uttering, "I know it when I see it." But that's exactly what Justice Potter Stewart wrote about obscenity.

When the case before the Court required the Justices to come up with standards for determining whether a movie, book, or other work is "hard-core pornography," Justice Stewart threw his hands up in the air: He said, "I shall not today attempt further to define the kinds of material I understand to be" hard-core pornography, "and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." (Jacobellis v. Ohio, 378 U.S. 184 (1964) (Stewart, J., concurring).)

To be fair, Justice Stewart wasn't the first—or the last—to struggle to define the murky concept of obscenity. Courts throughout the nation have wrestled with this topic for ages.

Legal Tests for Obscenity

Between 1942 and 1956, Congress passed some 20 laws regulating obscenity, and almost every state did the same. Then in 1957, the Supreme Court announced the test for determining what is obscenity. The court said that material is obscene if, under contemporary community standards, its dominant theme appeals to the average person's "prurient interest." Accordingly, courts were left to judge content by its tendency, when viewed as a whole, to arouse sexual desire. (Roth v. United States, 354 U.S. 476 (1957).)

The Roth Test: Prurient Interests

The Roth test proved to be very difficult to apply consistently. Courts reached contrary results when considering identical material. For example, in the 1960s, courts in some states deemed Henry Miller's book Tropic of Cancer obscene, while courts in others held that it was not. The legal status of the book differed depending on the state in which it was published or sold. The Supreme Court finally considered the book in 1964, deciding that it was not obscene.

Justice Stewart penned his notorious description of obscenity in a case called Jacobellis v. Ohio, also decided in 1964. In that case, the manager of an Ohio theater had been convicted for exhibiting the French film "The Lovers." In a split decision overturning the conviction, the Justices could not agree on whether the film was obscene or which legal standard should be used. Justice Stewart opined that obscenity must be limited to "hard-core pornography." Courts have apparently agreed, as today obscenity is practically, if not technically, restricted to matters involving sexuality.

The Miller Test: Any Redeeming Value

The Supreme Court eventually moved from the Roth test to a slightly more comprehensive view of obscenity. In Miller v. California, the court held that before a state bans a form of expression on the grounds that it is obscene, it must establish that the material as a whole:

  • appeals to a prurient interest in sex
  • is patently offensive in light of community standards, and
  • lacks serious literary, artistic, political, or scientific value.

(413 U.S. 15 (1973).)

Courts still use the Miller test to differentiate between obscene material and content that's protected under the Constitution. The states are free to establish more liberal interpretations of obscenity, but they can't apply standards that are any more exacting. Yet, no matter the standard involved, the line between constitutionally protected speech and obscenity is not only thin but also difficult—if not impossible—to pin down. It evolves alongside social perceptions of decency.

Examples of Government Regulation of Obscenity

Criminal cases aren't the only legal proceedings involving questions of obscenity; the issue also arises when governments seek to regulate or stop certain behavior, or seize and destroy controversial material.

Regulations Found Constitutional

Here are some instances where courts have upheld the states' use of the power to prohibit obscenity:

  • prohibiting the promotion of sexually oriented materials to minors and regulating their display to the public
  • banning films that had little, if any, plot and were comprised of scene after scene of sexual intercourse and oral sex
  • fining a business and suspending its liquor license for allowing nude dancing that involved exposure of pubic hair, the vulva and/or the anus, and
  • criminalizing the production, advertisement, or sale of matter depicting anyone under the age of 18 engaging in sexual activities.

Regulations Found Unconstitutional

Unconstitutional attempts at regulating obscenity include:

  • punishing mere private possession of obscene matter
  • classifying material as obscene simply because it contains nudity
  • ordering the deletion of part of a documentary showing indigenous people's bodies below the waist, and
  • preventing an institute for sex research from receiving material that would otherwise be obscene, but would be used to advance the study of human sexuality.

Possible Charges Related to Obscenity

Although it isn't normally a crime to possess pornography that features consenting adults, it can be a crime to possess, make, or disseminate certain types of pornography.

Child pornography, for example, is illegal under federal and state law. So, possessing or distributing child pornography is a crime in and of itself.

Making child pornography could lead to child molestation charges (either as a direct participant or an aider and abettor).

Making pornography with adult victims who did not consent to the sexual activity or are incapable of legally consenting can lead to rape or other sexual assault charges. Posting or distributing sexually explicit images of someone without their consent (even if they consented to the sex or made the images), can result in revenge porn charges.

Penalties for Charges Related to Obscenity

Charges related to child pornography all tend to be felonies and can result in several years in prison, whether under state or federal law. The same is true of child molestation, rape, and sexual assault charges that could arise from making pornography involving children or adult nonconsenting victims. Revenge porn is often a misdemeanor (assuming the person consented to any sexual activity the unauthorized material might contain), which is usually punished by up to a year in jail, but can vary from state to state.

Getting Legal Assistance

If you've been charged with a crime, it's important to discuss your case with a qualified criminal defense attorney. A Lawyer who has handled similar cases in the jurisdiction your case is in (i.e., federal or state) will be in the best position to tell you how your case is likely to fare in court.

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