Obscenity Basics: Part 2

Gregory A. Piccionelli
Editor's note: In this series' first part, we were introduced to US federal obscenity laws and their application to distributors of explicit depictions of hardcore sexual activity. Today we'll examine what obscenity is, and issues of compliance:

What Is Obscenity?
So what is obscenity? Simply put, an obscene photograph, video clip, DVD, live show, website or other matter is simply an expressive work that has lost the protection originally afforded to it by the First Amendment of the U.S. Constitution. That means that pretty much everything short of child pornography (which has no constitutional protection) starts out life as protected free speech.

The material is stripped of its constitutional protection only after a criminal trial in which a jury, applying a three-part test to the material at issue, determines the material to be "obscene."

That three-part test was first announced over 30 years ago by the U.S. Supreme Court in the case of Miller vs. California, and is now known simply as the "Miller Test." It requires that for any material to be obscene it must be shown that:

  • "The average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest;
  • The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and,
  • The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

To help guide juries in determining if something is obscene, the court gave a series of examples of the kind of sexual acts or conduct which could fall within the second part of the test:

  • Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated;
  • Patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals.

Subsequent cases have helped provide a little more information about the application of the Miller test. For example, in Brockett vs. Spokane Arcade, the court stated that "prurient interest" (which is the first part of the Miller test) must be limited to a "shameful or morbid interest in sex," and could not simply be equated to "lust" or "lustful desire."

In the case of a federal criminal prosecution for obscenity, the prosecutors are free to choose either the federal judicial district from which the allegedly obscene material is sent or transmitted, the federal judicial district into which the material is sent or transmitted or any federal judicial district though which the material passed.

Whichever choice is made by the prosecutor, the "relevant community" used to judge the obscenity of the material will almost invariably be the judicial district of U.S. District Court where the criminal indictment is obtained. Prosecutors have historically chosen jurisdictions that are the most hostile to, and intolerant of, sexually expressive materials. Indeed, all the recently initiated prosecutions have been brought in such hostile locations consistent with this pattern.

For example, in fall 2003 the federal government brought a multi-count obscenity and racketeering indictment against Extreme Associates, a California-based adult entertainment company, in a conservative part of Pennsylvania in which the government has had previous successes prosecuting obscenity cases.

The charges brought against the company and its owners included both the mailing and Internet transmission of allegedly obscene materials into Pennsylvania.

As you can see, compliance with the obscenity laws is a serious matter, and the information in this article provides only the most basic foundation for understanding the application of the federal obscenity laws to the distribution of adult entertainment materials. If you are in the business, it is imperative that you consult with a qualified adult entertainment attorney who can evaluate your specific situation and properly advise you.

Gregory A. Piccionelli, Esq. is a senior member of Piccionelli & Sarno, one of the world's most experienced Internet and adult entertainment law firms. He can be reached at (310) 553-3375 or

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