Obscenity
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...."[3] In the U.S., the 1973 ruling of the U.S. Supreme Court 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.
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."
[citation needed] In Cohen v. California, 403 U.S. 15 (1971), the U.S. Supreme Court ruled that the word "fuck", although almost universally considered obscene when used to describe sexual intercourse, is speech-protected by the First Amendment to the United States Constitution when used to express a political belief.
On 26 April 1968, Paul Robert Cohen, then 19 years old, donned a jacket bearing the words "Fuck the Draft" while visiting the Los Angeles Courthouse to testify as a defense witness in a court hearing.
In a dissenting opinion, Justice Blackmun countered that Cohen's wearing of the jacket in the courthouse was not speech but conduct amounting to an "absurd and immature antic".
Standards superseded by the Miller Test include: FCC rules and federal law govern obscenity in broadcast media.
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 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."
These films show explicit, non-simulated, penetrative sex that was presented as part of a reasonable plot with respectable production values.
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.
[31] For visual works of art the main obscenity law in England and Wales was, until the 1960s, the Vagrancy Act 1838 which was successfully used in prosecutions against D.H. Lawrence for an exhibition of his paintings at the Warren Gallery, London, in 1929,[32] and in 1966 against the British artist Stass Paraskos for an exhibition of his paintings held that year in the northern English city of Leeds.
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.
Home videotape was a booming market and it was relatively simple for individuals to smuggle hardcore material in from Europe or the United States, where it could be purchased legally, either for personal use or to copy it for distribution.
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.
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.
[28] Section 9 of the Criminal Law provide provisions against pornography, including creation, distribution and organizing public viewing.
[45] 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".
[46][47] In 2016 Mark Marek, owner of bestgore.com, pleaded guilty to breaching obscenity legislation for posting the video of the murder of Jun Lin.
[49] Criticism to the legislation have included:[50] 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.
[51] 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.
