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‘Obscene’ vs. ‘Legally Obscene’

‘Obscene’ vs. ‘Legally Obscene’

December 7, 2007
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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....


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