Home > Features > ‘Obscene’ vs. ‘Legally Obscene’ • Bookmark   • Newsletters   • Register Search Options

FEATURE

‘Obscene’ vs. ‘Legally Obscene’

‘Obscene’ vs. ‘Legally Obscene’

December 7, 2007
Text size: 
Get XBIZ News
XBIZ Research
Will virtual reality boost the paysite market?
Yes, it will soon
  39.66%
Yes, but in a few years
  36.87%
No
  23.46%
Out of 179 votes. Results based on votes submitted by members of XBIZ.net social network.
Let’s get this much straight; just because a large number of people find an item profoundly offensive and/or gross, that doesn’t mean that item is “obscene” in the legal sense. There’s plenty of material out there that the average person would find obscene, as that term is defined in a dictionary, that does not even come close to satisfying the legal definition.

You’re probably expecting me to launch into a defense of some unfortunate soul who has been indicted for selling adult DVDs, dirty stories, or running an explicit website.

Nope! Today I’m defending…. a sex education book for children and an anti-abortion activist?

For the last several weeks, a resident of Lewiston, Maine named JoAn Karkas has been pushing for a local library to pull from its shelves a book called “It’s Perfectly Normal,” asserting that the book runs afoul of the city’s obscenity ordinance and is therefore illegal.

As is the case with most state and municipal ordinances relating to obscenity, Lewiston’s city code employs a three-prong ‘test’ for obscenity that is very similar to the “Miller test.”

While it’s fair to say that “It’s Perfectly Normal” contains some frank discussions, and in some cases depictions (in the form of illustrations) pertaining to human sexuality, it is quite a stretch to assert that it meets the conditions described in the city’s code that would qualify it as “obscene.”

“Offensive” is not the same thing as “patently offensive,” for one thing, and a book that is specifically designed as a sex education book is quite likely to be found to have “serious scientific value,” in my opinion.

The question of whether the book is appropriate for the library’s youth section is separate from the question of whether it is legally obscene, and Karkas is wasting the city’s time by trying to get the courts involved. No word yet on whether the city will file a complaint, but my hunch is that they will not — unless they are prepared to face some costly (and embarrassing) litigation.

Just as “It’s Perfectly Normal” likely does not qualify as “obscene,” neither do the assuredly gross (but in no way sexual) images of aborted fetuses that were displayed by anti-abortion activist Bob Roethlisberger in Gwinnett County, Georgia.

Roethlisberger was arrested after driving around what Operation Rescue calls a "Truth Truck" (borrowed from Stephen Colbert, perhaps?) with graphic photos of aborted fetuses on it, which local police described as “vulgar and obscene.”

Roethlisberger reportedly was held for three days by authorities before being released on $1,000 bond. Later, the county solicitor announced that Roethlisberger would not be facing any charges, saying that enforcement of the statute prohibiting obscene, vulgar, or profane language “must necessarily be narrow and limited.”

What the solicitor realized — and what the police in Gwinnett County apparently did not — is that the language of Georgia’s definition of obscenity (which is relied upon in Gwinnett County code) essentially precludes the possibility of prosecuting someone for an obscenity violation unless the material distributed or act engaged in has is overtly sexual in nature, and “appeals to the prurient interest.”

Now I know there’s all manner of niche content out there, but somehow it’s hard for me to imagine too many people getting aroused at the sight of aborted fetuses....


LEGAL PERSPECTIVES

The Skinny on the New DMCA Requirement

The requirements under the Digital Millennium Copyright Act (DMCA) have changed, but the sky is not falling. We have, even as a law firm, been hit with an unbelievable amount of spam sent out by law firms... More »

2017 Outlook: Legal Matters Around the Corner

The adult entertainment business’ legal community recently weighed in the top issues that companies and the industry, as a whole, should be concerned about. XBIZ asked industry attorneys to discuss... More »

Fraudulent Brazilian Trademark Registrations Running Rampant

Although you might not think often about protecting your trademark rights in Brazil, you need to — even if you don’t yet have a single Brazilian customer. Scammers are constantly looking for... More »
XBIZ NEWSLETTERS
Stay informed of the latest industry developments. Get XBIZ newsletters delivered to your inbox. Subscribe today!
Enter email address:

* To manage existing subscriptions click here.






POPULAR PRODUCTS & SERVICES
Submit your press release to
multiple news outlets with 1 click.
Subscribe to RSS news feeds or
add free content to your website.
Access XBIZ news and articles
with your mobile device.
Subscribe to XBIZ Premiere magazine, the industry's leading adult retail trade publications, delivering the most timely and comprehensive business news and information to producers and retailers of adult products.

UPCOMING EVENTS

EXXXOTICA Denver

Mar 31 - Apr 02
Denver, CO.

Eurowebtainment 2017

May 17 - May 20
Majorca, Spain

XBIZ Retreat

May 30 - Jun 03
Miami, Florida

XBIZ Miami 2017

May 30 - Jun 02
Miami, Florida
Everyday thousands of business professionals browse XBIZ's industry directory for quality products and services. Not listed yet? Your company could be losing potential new business. Submit your company today!
Use XBIZ RSS feeds to stay informed of the latest industry developments or as a content syndication tool for your website!