||The examples and perspective in this article deal primarily with the English-speaking world and do not represent a worldwide view of the subject. (June 2012)|
An obscenity is any statement or act that strongly offends the prevalent morality of the time. It is derived from the Latin obscaena (offstage) a cognate of the Ancient Greek root skene, because some potentially offensive content, such as murder or sex, was depicted offstage in classical drama. The word can be used to indicate a strong moral repugnance, in expressions such as "obscene profits" or "the obscenity of war".
- 1 United States obscenity law
- 2 United Kingdom
- 3 New Zealand
- 4 Canada obscenity law
- 5 Brazil
- 6 Other countries
- 7 See also
- 8 Notes
- 9 References
- 10 Further reading
- 11 External links
United States obscenity law
|This section needs additional citations for verification. (December 2009)|
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.
Federal obscenity law in the U.S. is unusual in that there is no uniform national standard. Former Justice Potter Stewart of the Supreme Court of the United States, in attempting to classify what material constituted exactly "what is obscene," famously 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...." 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.
Non image-based obscenity cases in the USA
While most of the obscenity cases in the United States in the past century have revolved around images and films, there have been many cases that dealt with textual works as well.
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."
In 2005, the U.S. Department of Justice formed the Obscenity Prosecution Task Force in a push to prosecute obscenity cases. Red Rose Stories (www.red-rose-stories.com, now defunct), a site dedicated to text-only fantasy stories, became one of many sites targeted by the FBI for shutdown. The government alleged that Red Rose Stories contained depictions of child rape. The publisher pled guilty. Extreme pornographer Max Hardcore served 30 months of a 46-month prison sentence for obscenity.
Many U.S. states have had bans on the sale of sex toys, regulating them as obscene devices. Some states have seen their sex toy bans ruled unconstitutional in the courts. That ruling leaves only Mississippi, Alabama, and Virginia with current bans on the sale of obscene devices.
Literature (non-fiction) communicating contraceptive information was prohibited by several states. The last such prohibition, in Connecticut, was overturned judicially in 1965.
Key U.S. court cases on obscenity
- In 1957, two associates of acclaimed poet Allen Ginsberg were arrested and jailed for selling his book "Howl and Other Poems" to undercover police officers at a beatnik bookstore in San Francisco. Eventually the California Supreme Court declared the literature to be of "redeeming social value" and therefore not classifiable as "obscene". Because the poem "Howl" contains pornographic slang and overt references to drugs and homosexuality, the poem was (and is) frequently censored and confiscated; however, it remains a landmark case.
- FCC v. Pacifica (1978) (external link) better known as the landmark "seven dirty words" case. In that ruling, the Court 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."
- In Reno v. ACLU (1997), the Supreme Court struck down indecency laws applying to the Internet.
Standards superseded by the Miller Test include:
- 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))
- 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 rules and federal law govern obscenity in broadcast media. 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.
Obscenity law has been criticized in the following areas:
- Federal law forbids obscenity in certain contexts (such as broadcast); 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.
- 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).
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. Thus the open ended conflicting notes above remain in effect for obscenity prosecutions.
Some states have passed laws mandating censorship in schools, universities, and libraries even if they are not receiving government aid that would require censorship in these institutions. These include Arizona, Kentucky, Michigan, Minnesota, South Carolina, and Tennessee. Twenty more states were considering such legislation in 2001–2002.
Main article: Child pornography
Child pornography refers to images or films (also known as child abuse images)—or in some cases, writings—that depict sexually explicit activities involving a child; as such, child pornography is a record of child sexual abuse. Abuse of the child occurs during the sexual acts that are recorded in the production of child pornography, 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."
In New York v. Ferber, 458 U.S. 747 (1982), the U.S. Supreme Court ruled that child pornography need not be legally obscene in order to be outlawed. The Court ruled that in contrast to the types of images considered in Miller, images that depicted underlying harm to children need not appeal to "the prurient interest of the average person," portray sexual conduct in "a patently offensive manner," nor be considered holistically, in order to be proscribed. Another difference between U.S. constitutional law concerning obscenity and that governing child pornography is that the Supreme Court ruled in Stanley v. Georgia, 394 U.S. 557 (1969), that possession of obscene material could not be criminalized, while in Osborne v. Ohio, 495 U.S. 103 (1990), the high court ruled that possession of child pornography could be criminalized. The reason was that the motive for criminalizing child pornography possession was "to destroy a market for the exploitative use of children" rather than to prevent the material from poisoning the minds of its viewers. The three dissenting justices in that case argued, "While the sexual exploitation of children is undoubtedly a serious problem, Ohio may employ other weapons to combat it."
Censorship in film
This is most notably shown with the "X" rating under which some films are categorized. 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. However, it's been found that films have also been further censored than their heterosexual, male, white counterparts due to gay sex (even if implied), African American sex, or female pleasure as opposed to male pleasure.[unreliable source?]
In the United Kingdom, the Obscene Publications Acts sets the criteria for what material is allowed to be publicly accessed and distributed.
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.
Obscenity law in England and Wales is currently governed by the Obscene Publications Act, but obscenity law goes back much further into the English common law. The conviction in 1727 of Edmund Curll for the publication of Venus in the Cloister or the Nun in her Smock under the common law offence of disturbing the peace appears to be the first conviction for obscenity in the United Kingdom, and set a legal precedent for other convictions. These common law ideas of obscenity formed the original basis of obscenity law in other common law countries, such as the United States.
The Obscene Publications act is notoriously vague, defining obscenity as material likely to "deprave and corrupt". The 1959 act was passed just as most Western countries were about to enter a new phase of sexual freedom. The trial of Penguin Books over Lady Chatterley's Lover in 1960 failed to secure a conviction and the conviction in the 1971 trial of Oz magazine was overturned on appeal. An attempt to prosecute the University of Central England in 1997 over a copy of a library book by Robert Mapplethorpe was abandoned amidst derision from academics and the media.
During the 1960s and 1970s most Western countries legalised hardcore pornography. By the 1980s the UK was almost the only liberal democracy where the sale of hardcore pornography was still completely illegal, although ownership was not a criminal offence (except child pornography). Home videotape was a booming market and it was relatively simple for individuals to smuggle hardcore material in from Europe or the USA, where it had been purchased legally, either for personal use or to copy it for distribution. This resulted in a considerable black market of poor quality videotapes. Meanwhile, people attempting to buy pornography legally would often be stuck with heavily censored R18 certificate material.
While the authorities did their best to stay on top of illegal pornography they found that juries, while not particularly liking the material, were reluctant to convict defendants where the material was intended for private use among consenting adults. During the 1990s the advent of the internet made it easier than ever before for British citizens to access hardcore material. Finally, in 2000, following the dismissal of a test case brought by the BBFC, hardcore pornography was effectively legalised, subject to certain conditions and licensing restrictions. It is still an offence to sell obscene material by mail order. In late August 2005, the UK announced that it plans to criminalize possession of extreme pornographic material, rather than just publication.
After 1984 videotape sellers were more likely to be prosecuted under the Video Recordings Act rather than the OPA. The VRA requires that all videos must have a certificate from the BBFC. If the BBFC refuses a certificate a video is effectively banned for home viewing, but not necessarily in the cinema. Four films that were originally refused a certificate, The Exorcist, Straw Dogs, The Evil Dead and The Texas Chainsaw Massacre were granted a certificate in the late 1990s and have subsequently been screened on mainstream television.
In New Zealand, screening of Deep Throat (1972) was only cleared in 1986. However, the film has not been screened because the only cinema that has tried to organize a screening was thwarted by the city council that owned the building's lease.
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", the Canadian prohibited class of articles that 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 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".
Ever since 1940, in the Title VI of the Penal Code, naming crimes against sexual dignity (until 2009 crimes against [social] conventions), the fourth chapter is dedicated to a crime named "public outrage [related] to modesty" (Portuguese: ultraje público ao pudor, pronounced: [uwˈtɾaʒi ˈpublikw aw puˈdoʁ]).
It is composed of two articles, Art. 233 "Obscene Act", "to practice an obscene act in a public place, or open or exposed to the public", punished with arrest of 3 months to 1 year or a fine; and Art. 234 "Obscene Written Piece or Object", to do, import, export, purchase or have in one's property, to ends of trade, distribution or public display, any written, drew, painted, stamped or object piece of obscenity, punished with arrest of 6 months to 1 years or a fine.
Criticism to the legislation have included:
- They do not attack anyone's sexual dignity, instead causing outrage at best, but generally just slight discomfort or embarrassment, that can be easily avoided through not looking to such a scene.
- The Art. 234 is aside obsolete, unconstitutional, for the 1988 post-military dictatorship Constitution having in its Fifth Chapter: "[the people] are free to the expression of intellectual, artistic, scientific and communicative activity, independently of censorship and license", reason to which, instead of making it suffer penal restriction, gives any distribution of media the right to be fully exerted.
- The flourishing internet culture of Brazil, where such media is freely shared, as well as its pornographic industry and shops catered to the interests of enhancing apparatus to masturbatory and sexual activity.
It is often used against people who expose their nude bodies in public environments that were not warranted a license to cater to the demographic interested in such practice (the first such place was the Praia do Abricó in Rio de Janeiro, in 1994), even if no sexual action took place, and it may include for example a double standard for the chest area of women and men in which only women are penalized. Such a thing took place in FEMEN protests in São Paulo, in 2012.
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 local 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.
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 the 1960s.
- Merriam-Webster Online, accessed September 2010.
- Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
- Miller v. California, 413 U.S. 15, 24 (1972).
- Abramson, Larry (September 27, 2005). "Federal Government Renews Effort to Curb Porn". Morning Edition (NPR). Retrieved April 11, 2012.
- Gellman, Barton (September 20, 2005). "Recruits Sought for Porn Squadn". The Washington Post. Retrieved April 11, 2012.
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- Ward, Paula Reed (2008-08-07) Woman pleads guilty to obscenity for child-sex story site. Pittsburgh Post-Gazette Retrieved 2011-05-08.
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- Wortley, Richard; Stephen Smallbone (2006). Situational Prevention Of Child Sexual Abuse, Volume 19 of Crime prevention studies. Criminal Justice Press. p. 192. ISBN 1-881798-61-5.
- Sanderson, Christiane (2004). The seduction of children: empowering parents and teachers to protect children from child sexual abuse. Jessica Kingsley Publishers. p. 133. ISBN 1-84310-248-X.
- Akdeniz, Yaman (2008). Internet child pornography and the law: national and international responses. Ashgate Publishing, Ltd. p. 11. ISBN 0-7546-2297-5.
- "Definition of 'Child Pornography'". Criminal Code of Canada, Section 163.1. Electronic Frontier Canada. 2004.
- "Sharpe Not Guilty of Possessing Written Child Pornography". CBC News. March 26, 2002.
- Finkelhor, David. "Current Information on the Scope and Nature of Child Sexual Abuse.". Future of Children. v4 n2 (Sum-Fall 1994): p31–53.
- 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 0-443-05896-2.
Child pornography is part of the violent continuum of child sexual abuse
- Claire Milner, Ian O'Donnel. (2007). Child Pornography: Crime, computers and society. Willan Publishing. pp. p123. ISBN 1-84392-357-2.
- Sheldon, Kerry; Dennis Howitt (2007). Sex Offenders and the Internet. John Wiley and Sons. pp. p20. ISBN 0-470-02800-9.
'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)
- 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.
- 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.
- Sheldon, Kerry; Dennis Howitt (2007). Sex Offenders and the Internet. John Wiley and Sons. pp. p9. ISBN 0-470-02800-9.
...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.
- 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).
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- 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."
- 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
- "Date set for internet 'obscene' publications trial. Man in court over 'Girls Aloud' story" by John Ozimek Posted in Law, 22 October 2008 14:05 GMT
- "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
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- Criminal Code (R.S.C., 1985, c. C-46) (19 September 2014) Justice Laws Website. Retrieved 21 December 2014.
- Child-less Pornography by Chad Skelton id Magazine January 25, 1996
- Regina v. Pecciarich (Indexed as: R. v. Pecciarich) Ontario Court (Provincial Division) Sparrow Prov. Div. J. April 6, 1995
- Michael Lucas Implores Obama, Harper to Talk About Porn, AVN News, February 20, 2009.
- Lucas Porn Films Detained At Border, DNA magazine, February 13, 2009
- DJi -233 a 234- DL-002.848-1940 - Còdigo Penal - Ultraje Público ao Pudor (Portuguese)
- A propósito dos crimes de ultraje público ao pudor - Paulo Queiroz (Portuguese)
- Category: Ato Obsceno - Para Entender Direito - Folha Uol (Portuguese)
- Saeed Kamali Dehghan (18 January 2012) "Iran confirms death sentence for 'porn site' web programmer" The Guardian. Retrieved 21 December 2014.
- 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.
- 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
- 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
|Look up obscenity in Wiktionary, the free dictionary.|
- 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. 
- 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