I (seemed to) failed the first time that I posted this. So please forgive me if I am posting it again.
From time to time I notice members of this board make references to the legal concept of “obscenity”. For liberal libertarians like me there is no contest: actual explicit images that involve consenting adults should be legal period. And, images and writings that only involve fictitious “virtual” violence and minors should be legal too. Anyways, just in case anyone didn’t know, I thought I’d outline the Supreme Ct.'s definition of obscenity for once and for all…
The U.S. Supreme Ct. first tackled the subject of obscenity in 1957 in the now-famous Roth v. the U.S.. Prior to that the only common-law notion that the legal concept of obscenity was meant to keep explicit material out of the hands of minors prevailed. The only problem was that that had the tendency to reduce competent adult down to the level of minors. The Supreme Ct. took that weakness of the older definition into account when it finally settled on its definition. Please read:
Something will be considered obscene (and thus not protected by the U.S. Constitution) if it meets all of the following criteria:
[ul]
[li]The subject matter as a whole appeals to the prurient interests of the average person, using the community standards.[/li][/ul]
Analysis: “Prurient interest” is defined as an immoral or unhealthy interest in sex–using the standards of the community. Whether “community standards” refers to just one community or the U.S. as a whole is a perennial question.
[ul]
[li]The work depicts or describes in a patently offensive way, sexual acts specifically mentioned in the state’s statute.[/li][/ul]
Analysis:This clause is meant to “isolate” so-called “hardcore” pornography, with its graphic sex acts. Please also note that clever camera angles and blacked-out areas may circumvent the “patently offensive” part of this clause. The federal govt. can also outlaw obscenity, if it uses the state’s standards.
[ul]
[li]The work as a whole lacks serious literary, artistic, political or scientific value.[/li][/ul]
Analysis: So although so-called “pornographers” might consider their work an art form, the highest court apparently disagrees.
Now we get to the fun part…
Gray Areas:
-Private Possession of Obscenity: As I’ve already [http://207.68.164.250:80/cgi-bin/linkrd?_lang=EN&lah=5a6431b0bd5fc322b1e440c8d72e4f77&lat=1022139572&hm___action=http%3A%2F%2Fboards.straightdope.com%2Fsdmb%2Fshowthread.php%3Fthreadid%3D111499%26goto%3Dnewpost](http://boards.straightdope.com/sdmb/showthread.php?threadid=111499&goto=newpost <[url)>]said, it is always legal to possess obcene material, if you are a consenting adult and the material is about consenting adults and you are reading it in some private place–like your home.
-Child Pornography: Even if it falls short of the three criteria that I have listed above, child pornography may still be illegal–and so is private possession of it. This is especially true if it involves actual rape of an actual child.
-Children and Public Display: These are actually two separate issues, but I will deal with them in the same line. It is illegal to sell or display any form of explicit erotica to children–sometimes even if it is “protected” speech otherwise. It may be illegal for the child to possess it–although one source I once read said this is actually rare–prosecuting the children, I mean. Similiarly, public displays of sexual material is sometimes illegal, using the rationale that it violates the rights of those who don’t want to see it.
-Prior Restraint: Outlawing adult book stores has been held by the Supreme Court to be an unconstitutional form of “prior restraint”. They can be outlawed to avoid harmful “secondary effects” that they may (supposedly) bring.
Also of note is that the phenomenon of [http://207.68.164.250:80/cgi-bin/linkrd?_lang=EN&lah=07f475bbffc229265bf0ff9f27a64a8d&lat=1022580783&hm___action=http%3A%2F%2Fboards.straightdope.com%2Fsdmb%2Fshowthread.php%3Fthreadid%3D117403%26goto%3Dnewpost](http://boards.straightdope.com/sdmb/showthread.php?threadid=117403&goto=newpost <[url)>]gay erotica is also afforded all the same protections–and limitations.
And also of note, successful prosecutions of obscenity are said to be rare–according to several sources I’ve heard or read. The criteria are just too stringent. Of course, when you get someone like [http://207.68.164.250:80/cgi-bin/linkrd?_lang=EN&lah=3ab3a26e9edd0beceba0cb3f8b33eb01&lat=1022139125&hm___action=http%3A%2F%2Fboards.straightdope.com%2Fsdmb%2Fshowthread.php%3Fthreadid%3D113442%26goto%3Dnewpost](http://boards.straightdope.com/sdmb/showthread.php?threadid=113442&goto=newpost <[url)>]John Ashcroft who thinks it is his duty to waste our tax dollars on frivolous things like obscenity cases, who knows what may happen.
I hope this has all been informative.
TTFN:D
P.S. “Nudie” bars are also a protected form of “free speech”. You can look–just don’t touch.
