Censorship of obscenity in the United States
From The Art and Popular Culture Encyclopedia
US courts have ruled that the First Amendment protects "indecent" pornography from regulation, but not "obscene" pornography. People convicted of distributing obscene pornography face long prison terms and asset forfeiture.
The differentiation between indecent and obscene material, however, is a particularly difficult one, and a contentious First Amendment issue that has not fully been settled. Similarly, the level of offense (if any) generated by a profane word or phrase depends on region, context, and audience.
Late 19th and early 20th century
- The Production Code, voted in 1930, introduced in 1934.
- Redrup v. New York (1967)
- Ginzburg vs. United States
- Redrup v. New York
- Parliament News
- Brandon House
- William Hamling (publisher)
- Attorney General's Commission on Pornography
- Earl Kemp
United States obscenity law
- "Congress shall make no law (...) abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Thus, the United States of America has constitutional protection for freedom of speech, which is not interpreted to protect every utterance, in spite of the lack of exception clauses (rare in a national constitution) in the text of the First Amendment. The Supreme Court has found that, when used in the context of the First Amendment, the word "obscenity" is usually limited to content that directly refers to explicit sexual acts that are publicly accessible, though it has at times encompassed other subject matters, such as spoken and written language that can be publicly transmitted and received by the general public.
The legal term of obscenity is usually denoted to classify a distinction between socially permitted material and discussions that the public can access versus those that should be denied. There does exist a classification of those acceptable materials and discussions that the public should be allowed to engage in, and the access to that same permitted material—which in the areas of sexual materials ranges between the permitted areas of erotic art (which usually includes "classic nude forms" such as Michelangelo's David statue) and the generally less respected commercial pornography. The legal distinction between artistic nudity, and permitted commercial pornography (which includes sexual penetration) that are deemed as "protected forms of speech" versus "obscene acts", which are illegal acts and separate from those permitted areas, are usually separated by the predominant culture appreciation regarding such. However, no such specific objective distinction exists outside of legal decisions in federal court cases where a specific action is deemed to fit the classification of obscene and thus illegal. The difference between erotic art and (protected) commercial pornography, vs. that which is legally obscene (and thus not covered by 1st Amendment protection), appears to be subjective to the local federal districts inside the United States and the local moral standards at the time.
In fact, federal obscenity law in the U.S. is highly unusual in that—not only is there no uniform national standard, but rather, there is an explicit legal precedent (the "Miller test", below) that all but guarantees that something that is legally "obscene" in one jurisdiction may not be in another. In effect, the First Amendment protections of free speech vary by location within the U.S., and over time. With the advent of Internet distribution of potentially obscene material, this question of jurisdiction and "community standards" has created significant controversy in the legal community. (See United States v. Thomas, 74 F.3d 701 (6th Cir. 1996))
Even at the federal level, there does NOT exist a specific listing of which exact acts are to be classified as "obscene" outside of the legally determined court cases. Title 18, chapter 71 of the USC deals with obscenity, the workings out of the law described in this article, most notably the aforementioned Miller test.
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 . . ."
However, in the United States, the 1973 ruling of the Supreme Court of the United States 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.Delivering the opinion of the court, Chief Justice Warren Burger wrote,
The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.Justice Douglas wrote a dissenting opinion that eloquently expressed his dissatisfaction with the ruling:
The idea that the First Amendment permits government to ban publications that are "offensive" to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed "to invite dispute," to induce "a condition of unrest," to "create dissatisfaction with conditions as they are," and even to stir "people to anger." The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard "offensive" gives authority to government that cuts the very vitals out of the First Amendment. As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment - and solely because of it - speakers and publishers have not been threatened or subdued because their thoughts and ideas may be "offensive" to some.
In U.S. legal texts, therefore, the question of "obscenity" presently always refers to this "Miller test obscenity". As articulated in several sections of 18 USC Chapter 71, the Supreme Court has ruled that it is constitutional to legally limit the sale, transport for personal use or other transmission of obscenity. However, it has ruled unconstitutional the passing of law concerning personal possession of obscenity per se. Federal obscenity laws at present apply to inter-state and foreign obscenity issues such as distribution; intrastate issues are for the most part still governed by state law. "Obscene articles... are generally prohibited entry" to the United States by U.S. Customs and Border Protection.
At present, there are only two legally protected areas of explicit commercial pornography. The first is "mere nudity" as upheld in "Jenkins v. Georgia , 418 U.S. 153 (1974)" whereby the film "Carnal Knowledge" was deemed not to be obscene under the constitutional standards announced by Miller. As declared by the judge at trial "The film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards)." This was upheld time and again in later cases including "Erznoznik v. City of Jacksonville FL, 422 U.S. 205 (1975)" in which the city of Jacksonville stated that showing films containing nudity when the screen is visible from a public street or place is a punishable offense. The law was determined to be invalid as it was an infringement of First Amendment rights of the movie producer and theatre owners. The second is single male to female vaginal-only penetration that does NOT show the actual ejaculation of semen, sometimes referred to as "soft-core" pornography wherein the sexual act and its fulfillment (orgasm) are merely implied to happen rather than explicitly shown.
In June 2006, the U.S. Federal government in the district of Arizona brought a case against JM Productions of Chatsworth, Calif. in order to classify commercial pornography that specifically shows actual semen being ejaculated as obscene. The four films that were the subject of the case are entitled "American Bukkake 13", "Gag Factor 15", "Gag Factor 18" and "Filthy Things 6". The case also includes charges of distribution of obscene material (a criminal act under 18 USC § 1465 - "Transportation of obscene matters for sale or distribution") against Five Star DVD for the extra-state commercial distribution of the JM Productions films in question. The case was brought to trial on October 16th, 2007. At the first date of trial, the US DoJ decided not to pursue the JM obscenity case any further, leaving the matter without resolution, possibly fearing the formal establishment of films depicting ejaculation as a nationally protected material if the trial was decided in favor of JM Productions. While the US DoJ decided to abandon its legal pursuit of the JM productions, U.S. District Court Judge Roslyn O. Silver has forced the legal case against Five Star DVD distributors to continue, whereby the legal classification of whether "sperm showing through ejaculation" is an obscene act and thus illegal to produce or distribute will be definitely answered in order to convict Five Star of being guilty of "18 USC 1465 - Transportation of obscene matters for sale or distribution". The jury found that Five Star Video LC and Five Star Video Outlet LC were guilty of "18 USC 1465 - Transportation of obscene matters for sale or distribution" for having shipped JM Productions' film "Gag Factor 18". However, the specific content in that film that the jury deemed to actually fulfill the legal qualification of being "obscene" has not been specifically stated at this point.
Obscenity v. indecency
The differentiation between indecent and obscene material is a particularly difficult one, and a contentious First Amendment issue that has not fully been settled. Similarly, the level of offense (if any) generated by a profane word or phrase depends on region, context, and audience.
Non image-based obscenity cases in the USA
While most of the obscenity cases in the United States have revolved around images and films, there have been many cases that dealt with textual works as well.
The classification of "obscene" and thus illegal for production and distribution has been judged on printed text-only stories starting with "Dunlop v. U.S., 165 U.S. 486 (1897)" which upheld a conviction for mailing and delivery of a newspaper called the 'Chicago Dispatch,' containing "obscene, lewd, lascivious, and indecent materials", which was later upheld in several cases. One of these was "A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Mass., 383 U.S. 413 (1966)" wherein the book "Fanny Hill", written by John Cleland c. 1760, was judged to be obscene in a proceeding that put on the book itself on trial rather than its publisher. 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."
However, the book was labeled "erotica" in the 1965 case (206 NE 2d 403) and there a division between erotica and obscenity was made -- not all items with erotic content were automatically obscene. Further, the 1965 "John Cleland's 'Memoirs'" case added a further qualification for the proving of "obscenity" -- the work in question had to inspire or exhibit "prurient" (that is, "shameful or morbid") interest.
In September 2005 an FBI "Anti-Porn Squad" was formed, which has initially targeted for prosecution websites such as Red Rose Stories (www.red-rose-stories.com, now defunct), one of many sites providing text-only fantasy stories. Other former BDSM lifestyle websites such as BeautyBound.com, run by Midori, a prominent BDSM teacher and author on Japanese bondage, have closed themselves down despite not being targeted, due to these risks and legislative burdens. 
These standards were once used to determine exactly what was obscene. All have been invalidated, overturned, or superseded by the Miller Test.
- Wepplo (1947): If material has a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires. (People v. Wepplo, 78 Cal. App.2d Supp. 959, 178 P.2d 853).
- Hicklin test (1957): the effect of isolated passages upon the most susceptible persons. (British common law, cited in Regina v. Hicklin, 1868. LR 3 QB 360 - overturned when Michigan tried to outlaw all printed matter that would 'corrupt the morals of youth' in Butler v. State of Michigan 352 U.S. 380 (1957))
- Roth Standard (1957): "Whether to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest". Roth v. United States 354 U.S. 476 (1957) - overturned by Miller
- Roth-Jacobellis (1964): "community standards" applicable to an obscenity are national, not local standards. Material is "utterly without redeeming social importance". Jacobellis v. Ohio 378 US 184 (1964) - famous quote: "I shall not today attempt further to define [hardcore pornography] ...But I know it when I see it".
- Roth-Jacobellis-Memoirs Test (1966): Adds that the material possesses "not a modicum of social value". (A Book Named John Cleland's [[Memoirs of a Woman of Pleasure]] v. Attorney General of Massachusetts, 383 U.S. 413 (1966))
Under FCC rules and federal law, radio stations and over-the-air television channels cannot air obscene material at any time and cannot air indecent material between 6 a.m. and 10 p.m.: language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.
Many historically important works have been described as obscene or prosecuted under obscenity laws, including the works of Charles Baudelaire, Lenny Bruce, William S. Burroughs, James Joyce, D. H. Lawrence, Henry Miller, Samuel Beckett, and the Marquis de Sade.
U.S. activity and court cases dealing with obscenity
- In Roth v. United States (1957), the Supreme Court held that a published work is obscene if it a) appeals predominantly to prurient interests; b) is patently offensive by contemporary community standards; and, c) is utterly without redeeming social value. This definition was not very practical when identifying what should be censored.
- In Miller v. California (1973), the Supreme Court ruled that materials were obscene if they appealed, "to a prurient interest," showed "patently offensive sexual conduct" that was specifically defined by a state obscenity law, and "lacked serious artistic, literary, political, or scientific value." Decisions regarding whether material was obscene should be based on local, not national, standards.
- FCC v. Pacifica (1978) (external link) better known as the landmark “seven dirty words” case. In that 1978 ruling, the Justices found that only “repetitive and frequent” use of the words in a time or place when a minor could hear can be punished.
- In Reno v. ACLU (1997), the Supreme Court struck down indecency laws applying to the Internet, which casts serious doubt on Congress's ability to pass such wide-ranging regulation banning "indecent" speech on communications technologies that enter the home.
- In 1998 a jury in St. Tammany Parish,convicted Christine Brenan of "promoting obscene devices". They gave her a two-year suspended sentence, five years of probation and a fine of $1,500. The 1st Circuit Court of Appeals later struck down the law, ruling it unconstitutionally vague.
- The 1999 Law and Government of Alabama (Ala. Code. Â§ 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." Alabama claimed that these products were obscene, and that there was "no fundamental right to purchase a product to use in pursuit of having an orgasm. The ACLU challenged the statute, which was overturned in 2002. A federal judge reinstated the law in 2004. The matter was appealed to the US Supreme Court who in their refusal to hear the case has determined that the decision of the lower court is constitutional and enforceable within the state of Alabama.  Other states have similar laws regarding such product sales within their borders.
- In 2000, Larry Peterman of Provo, UT was charged with selling obscene material at his chain of video stores. A jury found him not guilty as the defense showed that residents of the town were disproportionately large consumers of the very materials Peterman was selling. 
- On January 20, 2005, in United States v. Extreme Associates, U.S. District Judge Gary Lancaster of western Pennsylvania initially ruled that the statutes against the obscenity laws were unconstitutionally vague and thus dismissed the case. However Judge Lancaster's decision was overturned on Department of Justice's appeal to the United States Court of Appeals for the Third Circuit, which reinstated federal obscenity charges against Extreme Associates stating that Judge Lancaster overstepped his authority. The Third Circuit Court ruled that what was protected was "a right to a protective zone ensuring the freedom of a man’s inner life", and noting a previous ruling in which higher courts "declined to equate the privacy of the home relied on in Stanley with a 'zone of privacy' that follows a distributor or a consumer of obscene materials wherever he goes." It also ruled that the lower court erred in attempting to overturn a Supreme Court ruling, which was reserved for the Supreme Court itself to do. The Court of Appeals denied Extreme Associates' constitutional challenge and held that the federal statutes regulating the distribution of obscenity do not violate any constitutional right to privacy. The case has been remanded back to Lancaster's court but as a jury decision not a bench decision (judge only decision) whereby the jury could make the same decision and rule that the law itself is flawed and should be removed, rather than just Extreme Associates and its products merely does not meet the stated criteria of being "obscene". On March 11, 2009 Extreme Associates and its owners plead guilty to the reinstated obscenity charges to avoid trial effectively shutting down the company. Extreme Associates also apparently took its website down concurrent with the plea.
- On or around October 3, 2005, Karen Fletcher operating the Red Rose Stories website which was text based only erotic stories of various intensity, was raided in the owner's absence by the FBI on the first non image based obscenity charges in the USA in several decades. The website was targeted because of the availability of sex fantasy stories involving children.  Fletcher posted an open letter on the website before its closing in mid 2006, stating that "I am being charged with 'OBSCENITIES' and face a minimum term of 3 years in a federal prison. Our stories are NOT protected speech. Please, please, be careful out there. When it comes to free speech SEX STORIES are NOT covered. The ONLY legal sex stories are those that involve a man and a woman, consenting to MISSIONARY POSITION SEX, in a dark room ... They are trying to say fantasy stories are illegal." . Also, "it appears the Porn Squad has been told that the best possibility of prosecution includes golden showers, scat ... and BDSM along with other fringe fetishes... [the US] government is not targeting kiddie porn only" . On September 3rd 2007, Fletcher's request to have the obscenity charges against her dismissed was denied by Federal U.S. District Judge Joy Flowers Conti and will proceed into actual jury trial . Fletcher's obscenity trial was scheduled to begin around April 2008. On May 19, 2008 she announced that she would be pleading guilty to six counts of online distribution of obscenity<.
- As noted on Truetales.org:
- "Beginning in late September 2005, a number of Websites containing SM material chose to delete that material or shut down, in response to the information in the Washington Post article. Among the Websites to censor themselves have been atruerose.com, kinkygurl.com, leatherquest.com, suicidegirls.com, UnderMySkirt.org, and three related Websites, houseofdesade.org, grandpadesade.com, and realbdsm.com. Midori's BeautyBound.com shut down as well, because of other U.S. legislation against erotic material."
- "According to various media sources, on October 7, 2005, the Webmaster of Now That's Fucked Up, a Website for user-submitted photos, was arrested for obscenity... after his Website received national attention for permitting U.S. soldiers overseas to post pictures showing war dead. There is no indication that the FBI was involved in this case."
- In April 2006, the four main US television networks and some 800 affiliated stations, sued the Federal Communications Commission which had recently increased in great measure both the strictness of its obscenity rules, and the penalties associated with sexual language. The networks claim that the FCC outstepped both its authority and precedent, that the old rules were drafted for a time when expectations were tighter and choice more limited, that they are hindered by rules not applicable to the hundreds of other stations available now, and that the changes were unconstitutional. 
- Paul Little, aka Max Hardcore, was found guilty on June 5th 2008 on all 10 counts of distribution of obscene material through physical and electronic means. His company Max World Entertainment was also found guilty on 10 related charges. At sentencing Little was sentenced to 46 months in prison and fines of more than $1.4 million. While serving his sentence, Little is actively appealing his conviction of creating and distributing obscene materials.
Obscenity law has been criticized in the following areas:
- Federal law forbids obscenity in certain contexts (such as broadcast), however the law does not define the term.
- The U.S. Supreme Court similarly has had difficulty defining the term. In Miller v. California, the court defers definition to two hypothetical entities, "contemporary community standards" and "hypothetical reasonable persons".
- The courts and the legislature have had similar problems defining this term because it is paradoxical, and thus impossible to define.
- Because the term "obscenity" is not defined by either the statutes or the case law, this law does not satisfy the Vagueness doctrine, which states that people must clearly be informed as to the prohibited behavior. Thus, this law confers no new rights, and is in fact, null and void.
- Because the determination of what is obscene (offensive) is ultimately a personal preference, alleged violations of obscenity law are not actionable (actions require a right).
- Because no actual injury occurs when a mere preference is violated, alleged violations of obscenity law are not actionable (actions require an injury).
It should be noted that in light of the recent decision of the en banc decision of the Third Circuit Court of Appeals, as brought by Judge Lancaster in the original US vs. Extreme Associates case, only the US Supreme Court is allowed to revise its earlier decision that established the Miller decision.
The US Supreme Court refused to hear, effectively rejecting, such modification in August 2006 when the same en banc decision by the Third Circuit was sent to the US Supreme Court for review. Thus the opened ended conflicting notes above remain in effect for obscenity prosecutions.