# Federal obscenity question
**URL:** https://boards.straightdope.com/t/federal-obscenity-question/505469
**Category:** Factual Questions
**Created:** [August 5, 2009, 9:12pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469 "2009-08-05T21:12:07Z")
**Posts on this page:** 18
**Page:** 1
### Author:  [@sweeteviljesus](https://boards.straightdope.com/u/sweeteviljesus)
#### Post date: [August 5, 2009, 9:12pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/1 "2009-08-05T21:12:07Z")
According to [Title 18 U.S.C. Part I, Chapter 71, Section 1468](http://www.law.cornell.edu/uscode/18/usc_sec_18_00001468----000-.html):
> [@](#):
>
> Whoever knowingly utters any obscene language or distributes any obscene matter by means of cable television or subscription services on television, shall be punished by imprisonment for not more than 2 years or by a fine in accordance with this title, or both.
Does this mean that HBO is routinely defying federal law? I know that there is some community standards test from Miller v. U.S. IIRC, but what is the community for a nationally broadcast program?
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### Author:  [@Oakminster](https://boards.straightdope.com/u/Oakminster)
#### Post date: [August 5, 2009, 9:32pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/2 "2009-08-05T21:32:58Z")
I highly doubt HBO has broadcast anything remotely close to being obscene. I forget the exact wording, but I think that term means something like material that appeals to the pruient interest with no redeeming educational, literary, scientific, or artistic merit.
Boobies on _Sex and the City_ don’t cut it.
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### Author:  [@Oredigger77](https://boards.straightdope.com/u/Oredigger77)
#### Post date: [August 5, 2009, 9:34pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/3 "2009-08-05T21:34:39Z")
> [@Oakminster](#):
>
> Boobies on _Sex and the City_ don’t cut it.
Well, what about the Playboy channel or even late night Cinemax?
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### Author:  [@ivn1188](https://boards.straightdope.com/u/ivn1188)
#### Post date: [August 5, 2009, 9:38pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/4 "2009-08-05T21:38:27Z")
> [@Oredigger77](#):
>
> Well, what about the Playboy channel or even late night Cinemax?
No. Obscenity means it is without redeeming value. Basically, it’s kiddie porn and Max Hardcore stuff (which might get overturned). Obscenity as a legal theory has been fading away for years; the government has mostly moved out of the business of enforcing “community standards”.
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### Author:  [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)
#### Post date: [August 5, 2009, 9:39pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/5 "2009-08-05T21:39:02Z")
> [@sweeteviljesus](#):
>
> According to [Title 18 U.S.C. Part I, Chapter 71, Section 1468](http://www.law.cornell.edu/uscode/18/usc_sec_18_00001468----000-.html):
> Does this mean that HBO is routinely defying federal law? I know that there is some community standards test from Miller v. U.S. IIRC, but what is the community for a nationally broadcast program?
submitted too soon
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### Author:  [@Oakminster](https://boards.straightdope.com/u/Oakminster)
#### Post date: [August 5, 2009, 9:42pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/6 "2009-08-05T21:42:52Z")
I was close. [Law.com](http://Law.com) defines obscene thusly:
obscene
adj., adv. a highly subjective reference to material or acts which display or describe sexual activity in a manner appealing only to “prurient interest,” with no legitimate artistic, literary or scientific purpose. Pictures, writings, film or public acts which are found to be obscene are not protected by the free speech guarantee of the First Amendment. However, the courts have had difficulty making a clear non-subjective definition since “one person’s obscenity is another person’s art,” or, as one Supreme Court Justice stated, “I can’t define it, but I know it when I see it.”
[Legal Dictionary | Law.com](http://dictionary.law.com/Default.aspx?selected=1368)
Under that definition, such as it is, I think most mainstream porn, even hardcore porn, probably gets a pass as having either artistic or literary merit.
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### Author:  [@barbitu8](https://boards.straightdope.com/u/barbitu8)
#### Post date: [August 5, 2009, 9:45pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/7 "2009-08-05T21:45:39Z")
You have cited a federal code section. The Federal Code is implemented by regulations enacted by the appropriate administrative agencey. In this case, I believe that is the FAA. The regulations promulgated pursuant to that statute undoubtedly permits the use of obscene language at a time when children are not usually watching; i.e., from 9 PM to 6 AM, or similar hours.
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### Author:  [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)
#### Post date: [August 5, 2009, 9:54pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/8 "2009-08-05T21:54:56Z")
> [@ivn1188](#):
>
> No. Obscenity means it is without redeeming value. Basically, it’s kiddie porn and Max Hardcore stuff (which might get overturned). Obscenity as a legal theory has been fading away for years; the government has mostly moved out of the business of enforcing “community standards”.
Cite? One of Ashcroft’s ambitions for the DOJ (admittedly this is now a few Attorneys General ago) was stepped up enforcement of obscenity law. And you may recall that your favorite Ninth Circuit judge recently caused a tit-bit of a snit in a federal obscenity prosecution he was superintending.
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### Author:  [@Cliffy](https://boards.straightdope.com/u/Cliffy)
#### Post date: [August 5, 2009, 10:06pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/9 "2009-08-05T22:06:00Z")
> [@barbitu8](#):
>
> You have cited a federal code section. The Federal Code is implemented by regulations enacted by the appropriate administrative agencey. In this case, I believe that is the FAA. The regulations promulgated pursuant to that statute undoubtedly permits the use of obscene language at a time when children are not usually watching; i.e., from 9 PM to 6 AM, or similar hours.
No.
Cable isn’t governed by the FCC. (Nor the FAA, unless it’s on airplanes.) But anyway, as discussed above, nothing broadcast on HBO is “obscene,” as that term is used in law.
–Cliffy
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### Author:  [@TBG](https://boards.straightdope.com/u/TBG)
#### Post date: [August 5, 2009, 10:23pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/10 "2009-08-05T22:23:00Z")
> [@Kimmy\_Gibbler](#):
>
> Cite? One of Ashcroft’s ambitions for the DOJ (admittedly this is now a few Attorneys General ago) was stepped up enforcement of obscenity law. And you may recall that your favorite Ninth Circuit judge recently caused a tit-bit of a snit in a federal obscenity prosecution he was superintending.
tit-bit? 😃
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### Author:  [@Chessic\_Sense](https://boards.straightdope.com/u/Chessic_Sense)
#### Post date: [August 5, 2009, 10:29pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/11 "2009-08-05T22:29:23Z")
> [@Kimmy\_Gibbler](#):
>
> submitted too soon
Isn’t that a segment in _Real Sex_?
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### Author:  [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)
#### Post date: [August 5, 2009, 10:45pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/12 "2009-08-05T22:45:25Z")
> [@barbitu8](#):
>
> You have cited a federal code section. The Federal Code is implemented by regulations enacted by the appropriate administrative agencey. In this case, I believe that is the FAA. The regulations promulgated pursuant to that statute undoubtedly permits the use of obscene language at a time when children are not usually watching; i.e., from 9 PM to 6 AM, or similar hours.
You’re confusing indecency with obscenity.
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### Author:  [@ivn1188](https://boards.straightdope.com/u/ivn1188)
#### Post date: [August 5, 2009, 11:06pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/13 "2009-08-05T23:06:53Z")
> [@Kimmy\_Gibbler](#):
>
> Cite? One of Ashcroft’s ambitions for the DOJ (admittedly this is now a few Attorneys General ago) was stepped up enforcement of obscenity law. And you may recall that your favorite Ninth Circuit judge recently caused a tit-bit of a snit in a federal obscenity prosecution he was superintending.
[http://www.firstamendmentcenter.org/news.aspx?id=11803](http://www.firstamendmentcenter.org/news.aspx?id=11803)
Ashcroft’s bump in prosecutions were more than the number under Clinton, but still fell short of the 60’s, 70’s, and 80’s.
When was the last time you saw a comedian or a band being arrested onstage?
"Bryan Sierra, a Justice Department spokesman, said the department didn’t track obscenity prosecutions, but that they have been “rare over the past decade or so.”
Patrick McGrath, spokesman for Morality in Media, a New York-based nonprofit religious organization, welcomed the planned crackdown. In some recent years, he said, federal obscenity prosecutions had been in the single digits, down from around 70 a year in the mid-1980s."
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### Author:  [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)
#### Post date: [August 5, 2009, 11:47pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/14 "2009-08-05T23:47:48Z")
As others have mentioned, _Miller_ promulgates a three-part test for obscenity (and which should not be confused with _Pacifica_’s indecency). Those elements are:
[ol]
[li]the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest,[/li][li]the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and[/li][li]the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[/li][/ol]
Now, in general, none of HBO’s programming satisfies all three prongs of the test. However, the OP does ask a very subtle question, to wit, “what is the community for a nationally broadcast program?”.
In _Pope v. Illinois_, the SupremeCourt clarified that “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.” The third prong, the Court taught, is not determined according to contemporary community standards but whether a reasonable person would find such value in the work. The Court reasoned that serious literary, artistic, political, or scientific value inhered in the work and did not vary from community to community.
The Court has never told us what precisely the community is whose standards will govern in an obscenity finding. The Court has approved jury instructions where the jury is directed to apply “contemporary community standards” without further articulation of what that means. In _Reno v. ACLU_, the Court observed that “the ‘community standards’ criterion as applied to the Internet means that any communication available to a nation wide audience will be judged by the standards of the community most likely to be offended by the message.” Although the Court’s elaboration on this point suggested that this would be an unconstitutional state of affairs, it did not decide the issue since the CDA was rejected on other grounds (overbreadth). Finally, in _Ashcroft v. ACLU_ (2000), the Court approved of the use of “contemporary community standards” in a federal statute outlawing material on the Internet that was harmful to minors. The argument paralleled the fear in _Reno_, that such a criterion would mean that material on the Internet would be subjected to the community standards of the most restrictive community. The Court held that like _Miller_ and unlike the CDA, the additional prongs of the test, including the community-invariant “serious value” prong, saved the COPA from overbreadth.
So, it seems that an uneasy balance has been struck and the Court is content to allow “contemporary community standards” to remain ambiguous so long as it is coupled with an increasingly more dispositive “serious value” test. But as to the OP’s specific question, the community whose standards will apply are whatever standards the jury panel understands that phrase to mean.
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### Author:  [@installLSC](https://boards.straightdope.com/u/installLSC)
#### Post date: [August 6, 2009, 12:39am UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/15 "2009-08-06T00:39:48Z")
There have been cases where [porn has been aired on public access television](http://www.thestranger.com/seattle/Content?oid=20582). Could this be prosecuted by the statute quoted above, and if it can why hasn’t it been prosecuted?
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### Author:  [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)
#### Post date: [August 6, 2009, 1:42am UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/16 "2009-08-06T01:42:08Z")
> [@installLSC](#):
>
> . . . and if it can why hasn’t it been prosecuted?
Prosecutorial discretion. The government is permitted to determine whether they institute a case or not. And while they are not allowed to enforce a statute in a way that discriminates against prohibited classes, you cannot, as a government agent, be punished for whom you forbear from prosecuting.
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### Author:  [@sweeteviljesus](https://boards.straightdope.com/u/sweeteviljesus)
#### Post date: [August 6, 2009, 4:28pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/17 "2009-08-06T16:28:17Z")
With respect to COPA, it seems to me that the test should be that the material in question is provably harmful to minors. As I understand it, prosecutors may skip over that point and proceed directly to applying the Miller test.
With respect to the OP, I would definitely say that Real Sex appeals to a prurient interest (that is why I watch it after all) and I don’t see how it has serious literary, artistic, political or scientific value.
Also, with respect to the Miller test, could one avoid obscenity prosecution by producing a kiddie porn with political slogans painted on the bodies of the actors? What if it were animated? (I guess that would be up to a jury to decide whether the movie had serious political value).
Rob
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### Author:  [@sweeteviljesus](https://boards.straightdope.com/u/sweeteviljesus)
#### Post date: [August 6, 2009, 4:33pm UTC](https://boards.straightdope.com/t/federal-obscenity-question/505469/18 "2009-08-06T16:33:53Z")
I just found out that COPA has been ruled unconstitutional.