U.S. Obscenity Law

Alex Henderson
When adult entertainment providers hire attorneys to review their films, magazines or websites, they frequently ask, "Could this material cause me legal problems?" But quite often it is difficult to offer a simple yes or no answer because for many years the American courts have been wrestling with what does and doesn't constitute obscenity. American courts have repeatedly ruled that obscenity is not protected by the 1st Amendment of the U.S. Constitution. However, U.S. definitions of obscenity have evolved considerably over the years, and obscenity is certainly tougher to prove in 2006 than it was in the 19th century. Below are 10 of the most important cases and decisions in the history of American obscenity law.

1. Miller vs. California
In 1973, the Supreme Court came up with a definition of obscenity that can be used to make or break an obscenity case. According to the high court's ruling in Miller vs. California, a prosecutor seeking an obscenity conviction must show a jury that the work in question is obscene because it (1) is prurient according to contemporary community standards, (2) is patently offensive, and (3) lacks serious literary, artistic, political or scientific value when taken as a whole. The Miller test is now the test that both prosecutors and defense attorneys go by in obscenity cases; if a prosecutor contends that a sexually explicit film or magazine meets the Miller test's three criteria for obscenity, the defense attorney may counter that his/her client's material does, in fact, have serious artistic value and, therefore, is not obscene.

2. Roth vs. the United States
When New York City resident Samuel Roth was convicted of mailing obscene material, he appealed that conviction and his case went all the way to the U.S. Supreme Court. The court upheld Roth's conviction and noted that obscenity is not protected by the 1st Amendment. In its Roth vs. the U.S. decision of 1957, the Supreme Court defined obscenity as material that "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests." Some elements of the Roth test were upheld in the Miller test 16 years later, including the contemporary community standards part. The Roth and Miller decisions both asserted that national standards need not be applied in an obscenity trial, which is important because the community standards of Seattle or San Francisco can be quite different from the community standards of Wichita, Kan., or Salt Lake City.

3. Regina vs. Hicklin
Although the ruling in the Regina vs. Hicklin case of 1868 occurred in Great Britain, that ruling had a major influence on American obscenity law in the 19th and early 20th centuries. The Regina vs. Hicklin ruling defined obscenity as material that tends to "deprave or corrupt" the most susceptible members of society. American courts went by that definition for many years. When the cases Rosen vs. the U.S. and Swearingen vs. the U.S. went to the U.S. Supreme Court in 1896, the high court agreed with Britain's Regina vs. Hicklin definition of obscenity — a definition that was very prosecutor- friendly because a book could be considered obscene even if only a fraction of it was mildly erotic.

4. The Comstock Act of 1873
Anthony Comstock (1844-1915) was a 19th century equivalent of Alan Keyes, Gary Bauer or Jerry Falwell — a far-right religious fanatic with an obsessive disdain for even the mildest erotic expression. But there is one crucial difference between Comstock and his modern-day counterparts: Comstock, in his day, enjoyed considerably more political power. In 1873, Congress passed the so-called Comstock Act, which made Anthony Comstock a special inspector for the U.S. Post Office and gave him the power to seize and destroy any books, magazines or pamphlets he considered obscene. Numerous obscenity prosecutions resulted from the Comstock Law, which criminalized everything from pamphlets promoting birth control to great literary works such as Chaucer's "The Canterbury Tales."

5. One Book Titled Ulysses vs. the United States
In 1933, federal judge John M. Woolsey dealt a major blow to 1868's Regina vs. Hicklin ruling and 1873's Comstock Act. That year, Woolsey declared that James Joyce's "Ulysses" — one of the many literary classics that became a victim of Comstockery and Regina vs. Hicklin — was not obscene. A court of appeals affirmed Woolsey's decision, which stated that obscenity should not be determined by its effect on "the most susceptible members of society" (the Regina vs. Hicklin definition) but by its effect on the average person. Woolsey rejected Regina vs. Hicklin's assertion that even a small, isolated part of a book could make it obscene; according to Woolsey, the book's overall literary value must be weighed. Woolsey's "average person" test was subsequently employed in the Supreme Court's Roth and Miller decisions.

6. Lawrence vs. Texas
In 2003, the Supreme Court's ruling in Lawrence vs. Texas struck down a Texas law that criminalized sodomy among consenting adults. That ruling said, in effect, that the government could not have a "compelling interest" in suppressing consensual sexual activity that occurs among adults behind closed doors. Since 2003, that decision has worked to the advantage of some adult entertainment providers. For example when U.S. District Court Judge Gary Lancaster dismissed obscenity charges against Robert Zicari, aka Rob Black, and his wife Janet Romano, aka Lizzy Borden (both of Extreme Associates) in 2005, he based his decision largely on Lawrence vs. Texas.

7. Ashcroft vs. the Free Speech Coalition
In 2002, the case Ashcroft vs. the Free Speech Coalition went to the Supreme Court, which struck down some provisions of the Child Pornography Prevention Act of 1996. The CCPA had made it illegal to distribute or possess so-called "virtual child pornography" — that is, material that appears to depict sexual activity with minors but doesn't involve any actual minors. but in 2002, the high court ruled 6-3 that banning "virtual child pornography" violated the 1st Amendment and that "virtual child pornography" doesn't violate child porn laws because no real-life minors are involved. The FSC applauded that ruling and asserted that law enforcement should use its resources to prosecute real child porn — not something that is pure fantasy.

8. Jack Thompson vs. the 2 Live Crew
In 1990, Florida attorney/Christian Right activist Jack Thompson set out to prove that obscenity law not only applied to films and magazines but could apply to music as well. Thompson's main target was rap group the 2 Live Crew. He insisted that the Miami-based rap group's sexually explicit 1989 release "As Nasty as They Wanna Be" violated obscenity laws, and his anti-Crew campaign led to Florida Judge Jose Gonzalez ruling that the album was obscene and illegal to sell. Various retailers were arrested for selling "As Nasty as They Wanna Be," but a court of appeals overturned Gonzalez's ruling in 1992, a decision that was upheld by the U.S. Supreme Court.

9. American Booksellers Association vs. Hudnut
The Christian Right does not have a monopoly on attempts to restrict or ban adult entertainment; some of the more radical feminists (some would say pseudo-feminists) on the far left have claimed that adult entertainment does not enjoy 1st Amendment protections because it violates the Civil Rights Act of 1964. Legally, this school of thought (which is exemplified by law professor Catharine MacKinnon and the late Andrea Dworkin) was put to the test in 1995 by the 7th U.S. Circuit Court of Appeals ruling in the case of American Booksellers Association vs. Hudnut. That case examined the constitutionality of a MacKinnon/Dworkin-influenced ordinance in Indianapolis, which defined pornography as a violation of women's civil rights; the 7th Circuit ruled that the Indianapolis ordinance was unconstitutional and that adult entertainment can be prosecuted for obscenity (applying the Miller test) but not as a civil rights violation.

10. Georgia vs. Stanley
When Georgia authorities raided the home of suspected bookie Robert Stanley in the late 1960s, they were looking for gambling paraphernalia. They found nothing to prove Stanley's involvement in illegal gambling, but they did find reels of erotica and charged him with possessing obscene material — a crime under Georgia state law at the time. When the Georgia vs. Stanley case went to the U.S. Supreme Court in 1969, the high court declared the Georgia law unconstitutional and ruled that civilians could not be prosecuted for possessing obscene material in the privacy of their own homes.

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