United States obscenity law

[1] Most obscenity cases in the United States in the past century have involved images or films, but there have also been prosecutions of textual works as well, a notable one being that of the 18th-century novel Fanny Hill.

Adoption of obscenity laws in the United States at the federal level in 1873 was largely due to the efforts of Anthony Comstock, who created and led the New York Society for the Suppression of Vice.

Erotic art (including "classic nude forms" such as Michelangelo's David statue) and less respected commercial pornography are generally not considered obscene.

[6] In Rosen v. United States (1896), the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin, [1868] L. R. 3 Q.

The Hicklin test defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.

Instead, the new Roth test for obscenity was: whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest.

[9] In his concurring opinion in the case, Justice Potter Stewart stated that obscenity is "constitutionally limited to hard core pornography....

[5] However, the Supreme Court has clarified that only "the first and second prongs of the Miller test—appeal to prurient interest and patent offensiveness—are issues of fact for the jury to determine applying contemporary community standards".

In Jenkins v. Georgia, 418 U.S. 153 (1974), the Supreme Court found the film Carnal Knowledge not to be obscene under the constitutional standards announced by Miller.

The Supreme Court found the law invalid as an infringement of the First Amendment rights of the movie producer and theater owners.

In June 2006, the federal government brought a case against JM Productions of Chatsworth, California in order to classify commercial pornography that specifically shows actual semen being ejaculated as obscene.

[citation needed] "Indecent" material that is not obscene or child pornography is protected by the First Amendment, except that the government may attempt to keep it away from minors.

[21] While most of the obscenity cases in the United States in the past century have involved images or films, some have dealt with textual works.

Another was Kaplan v. California, 413 U.S. 115 (1973), in which the court determined that "Obscene material in book form is not entitled to any First Amendment protection merely because it has no pictorial content."

Further, the 1965 John Cleland's 'Memoirs case added a further requirement for the proving of "obscenity"—the work in question had to inspire or exhibit "prurient" (that is, "shameful or morbid") interest.

An unauthorized "Medusa" edition of the novel was published in New York City in 1940 by Jacob Brussel; its title page claimed its place of publication to be Mexico.

§ 13A-12-200.1) made it "unlawful to produce, distribute or otherwise sell sexual devices that are marketed primarily for the stimulation of human genital organs."

[34] Obscenity law has been criticized in the following areas:[35] Congress passed a law in 1990 that required such organizations such as the National Endowment of the Arts (NEA) and National Association of Artists' Organizations (NAAO) to abide by general decency standards for the "diverse beliefs and values of the American public" in order to receive grant money.

[39] When these actions are challenged in court as violations of freedom of speech, the venues are often looked at to see if they are a "designated public forum."

If a court finds that the venue is not a designated public forum, then government officials have the right to exclude or censor the work.

[39] In the Miller decision the use of the words "contemporary community standards" typically means that the law evolves along with social mores and norms.

Similarly a set of rules was put in place in Indiana to control erotic dancing, where legal, so that all dancers must either wear "pasties" or "g-strings" as shown in the 1991 case of Barnes v. Glen Theatre.

This mandates that all schools and libraries receiving federal aid for internet connections install a "technology protection measure" (filter) on all computers, whether used by children or adults.

In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court held that child pornography that is produced without using an actual minor (computer-generated images, for example) is protected by the First Amendment if not found to be obscene.

Current laws that can be enforced after the fact are limited by the definition of "obscene" in the 1973 U.S. Supreme Court decision Miller v. California.

This has sometimes led to self-censorship of certain sexual content among participating filmmakers wishing to avoid an X, R, or PG-13 rating that would restrict the size of the potential audience.

These films show explicit, non-simulated, penetrative sex that was presented as part of a reasonable plot with respectable production values.