Obscenity: legal definitions

Definition: Legal definitions are what courts use to determine obscenity

Significance: To convict someone of obscenity, a court must find that the alleged obscenity fits within a legal definition

The U.S. Supreme Court has long balanced other rights, including the public’s presumed right to be protected from obscene materials, against the right of free expression. The press has a right to publish without prior restraint, but there is a corresponding right of adults to avoid being publicly assaulted by displays they regard as offensive. There is an even greater need to protect children from pornographic materials, which might damage their emotional development. Prior restraint is also allowed for pictures of sexual acts by children, as the U.S. Supreme Court made clear in New York v. Ferber (1982), and sex acts involving children are against the law in every U.S. jurisdiction. Filming an illegal sex act is also illegal, so such restraint is easy to define.

Regarding adult publications for private use at home, the Supreme Court has allowed some prior restraints, but it has had great difficulty in defining them, principally because of the strong constitutional presumption against prior restraint and because it is hard to define what is pornographic and what is not. The Court has consistently held that obscenity is not protected under the First Amendment, but the Court had had serious problems defining what is obscene.

First Definition Used in the United States

The first definition of obscenity was derived from the ruling of the British courts in the Hicklin case (Regina v. Hicklin, 1868). In the Victorian era, the British courts chose a broad definition of obscenity. A “tendency” in the material alleged to be obscene “to deprave and corrupt those whose minds are open to such immoral influences and into whose hands” the material “may fall,” was sufficient to ban an entire work.

This definition was used by the authorities on the federal and state levels in the United States from its announcement until it was revised by the twentieth century federal courts. To say that it was used is not to say that it was not under attack. One critic, U.S. federal judge Curtis Bok, argued that the Hicklin rule “renders any book unsafe, since a moron could pervert to some sexual fantasy to which his mind was open the listings of a seed catalogue.”

In the United States, the Hicklin definition survived until the 1930s, when Random House wanted to publish an uncut version of James Joyce’s Ulysses (1922) and prepared a legal challenge to a U.S. Customs ban on the book. In the case, United States v. One Book Entitled Ulysses (1934), Judge John M. Woolsey ruled that the book was not obscene. When his reasoning was upheld by the Supreme Court, it became known as the Ulysses standard, which lasted until 1957. The most significant definitional change in the Ulysses standard was to abandon the notion that an isolated passage could render a work obscene. Woolsey held that a work could only be judged obscene if “the publication taken as a whole has a libidinous effect.” Woolsey found that any work that was written deliberately as titillating pornography could be banned, but he asserted that the conclusion would have to be made by the “average person” who was defined as the close equivalent of the legal concept of the reasonable man.

First Modern Definition

The Supreme Court gave the first modern definition of obscenity in Roth v. United States (1957). The Court’s first premise was that “All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection.” With this first premise, the Court faced a difficult job of finding any way to block obscenity. The First Amendment has been interpreted to guarantee all ideas against any prior restraint except obscene ones. The definition of obscenity thus became crucial, but difficult. Chief Justice Earl Warren once said the definition of obscenity presented the Court with its most difficult area of adjudication. Obscenity was fully defined by the following phrase: “Whether to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.”

“Prurient” was defined as “material having a tendency to excite lustful thoughts.” However, the Court also asserted that “sex and obscenity are not synonymous.” Obviously, the Court could not equate sex and obscenity without banning a whole range of artistic, medical, and scientific materials. While there is a certain logic in the Roth decision, the logic is achieved only by using words that themselves are not easy to define. Obscenity may be defined but the word “prurient” is also hard to define. What is meant by a community standard is also quite vague. Reaching judicial determinations on whether particular works do or do not fit within a definition made up of so many vague words is daunting. The Court has suffered the logical outcome of the vague definition: a flood of litigation that appeals to the Court for clarification. The Court has faced an extremely large number of obscenity cases being presented to it. Furthermore, its apparent agreement on the definition was short-lived.

By 1967, several distinct positions were evident. Associate justices Hugo Black and William O. Douglas maintained that the principle of no prior restraint is so strong that neither federal, state, nor local governments have any power to regulate any sexually oriented matter on the ground of obscenity. Associate Justice John Marshall Harlan took the diametrically opposed view that the federal government could control the distribution of pornography by using its enumerated powers, and that states were entitled to even greater freedom to ban any materials that state courts had reasonably found to treat sex in a fundamentally offensive manner under rational standards for judging such material.

A variety of other views were held by the other justices, and the remaining justices changed their statements so often that it is difficult to characterize their points of view. From 1967 until 1973, the court followed the practice in Redrup v. New York (1967). The Court granted reversals of convictions for the dissemination of obscene materials that at least five members of the Court, applying their separate tests, deemed not to be obscene. These reversals were per curiam (that is, they set no precedents) and were unsatisfactory because they did not include any accompanying opinions as guidance for lower courts. As do vague guidelines, per curiam decisions invite endless litigation.

At one point in the struggle to define pornography, Associate Justice Potter Stewart, with evident frustration, said of obscenity: “I can’t define it, but I know it when I see it.” This is an accurate description of what the Court was doing from 1967 to 1973, when it was forced to rely on per curiam decisions. The per curiam decisions were not working: It was unsatisfactory for all lower courts, prosecuting attorneys, police officers, defense attorneys, the producers of such materials, and the public.

The Miller Case

A new definition was offered in the case of Miller v. California (1973) and in a companion case Paris Adult Theater v. Slaton (1973), when the Court revised its definition, which was no more adequate than the old. Since five justices voted for the definition, it became the new definitive holding (or leading case). The new definition made two major changes. First, it specifically rejected the standard “utterly without redeeming social value” established in Memoirs v. Massachusetts (1966) in favor of a broader standard that the obscene work must “appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Second, it rejected the notion that some kind of national “community standards” exists in favor of “community standards” determined by local areas. The Court explained: “our nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 states in a single formulation, even assuming the prerequisite consensus exists. To require a state to structure obscenity proceedings around evidence of a national ’community standard’ would be an exercise in futility.” Promptly some communities began defining obscenity very broadly. A Georgia community banned a nationally recognized film (Carnal Knowledge, 1971) because an actress in it exposed her “bare midriff.” In Jenkins v. Georgia (1974), the Court was again faced with making a decision on a case-by-case basis. As of 2018, the "Miller test" remained the working definition of obscenity in a legal context.

Legal attitudes toward obscenity began to change in the 1990s, with judges tending to decide against restricting speech. In Denver Telecommunications v. FCC (1996), the Supreme Court overturned part of a law restricting "sex-related material" on cable channels, ruling that cable operators could not ban indecent programming from public-access cable channels. In Reno v. American Civil Liberties Union (1997), the court found, notably, that a law restricting the transmission of sexually explicit material over the internet was an unconstitutional restriction of free speech. In the twenty-first century, prosecutions for obscenity at the federal level have become rare.

Censorship and prior restraint are so alien to the American system that the Court has found it difficult to apply censorship in nearly any area. The Court acknowledges that society has rights to protect adults from unwanted public obscenity and to protect children, but the Court is uncomfortable with any form of prior restraint. It may be that there is no way to write a clear obscenity law.

Bibliography

Abraham, Henry J., and Barbara A. Perry. Freedom and the Court. Oxford, 1994.

Cohen, Jeremy. Congress Shall Make No Law. Iowa State UP, 1989.

Greenawalt, Kent. "Pornography." Speech, Crime, and the Uses of Language. Oxford, 1994.

Mendelson, Wallace. The American Constitution and Civil Liberties. Dorsey, 1981.

Waxman, Olivia B. "This Is What Americans Used to Consider Obscene." Time, 21 June 2016, time.com/4373765/history-obscenity-united-states-films-miller-ulysses-roth/. Accessed 1 May. 2018.