Overview of Obscenity Law

The controversy over obscenity, what constitutes obscenity and how obscenity law is or is not contrary to the first amendment, has been ongoing through the ages, but moved into the spotlight for the United States in the 20th Century.

In 1957, the U.S. Supreme Court heard the case of Roth v. United States and the California Courts heard Alberts v. California where individuals were charged with obscenity offenses. These cases revolved around whether or not the obscenity statutes under which these defendants were charged and convicted were constitutional. The question was whether or not the obscenity laws violated the First Amendment's guarantee of freedom of speech and the due process clause of the Fourteenth Amendment. The Court upheld the statutes as constitutional.

The defendants in these cases argued that the wording in the State and Federal statutes did not provide sufficient understandable definition for the standards that constituted guilt. The Court decided that obscenity laws, designed to protect the morals of the people, do not infringe on the area of protected speech or expression under the First Amendment. They also decided that the wording of the statutes gave adequate warning of the types of conduct that was prohibited. The Court stated that the test of obscenity is whether or not, to the average person, applying contemporary community standards, the material appeals to prurient interest.

The statutes brought under scrutiny by these two cases were indeed too vague in their definitions. In that same year, several State statutes prohibiting the use, sale or possession of obscene material were ruled unconstitutional by the Courts. The Courts stated that the obscenity statutes were too vague, did not adequately define obscenity and did not provide reasonably ascertainable standards of guilt.

Later the definition of obscenity was written as follows: "Any work that depicts or describes sexual conduct, that taken as a whole appeals to the prurient interest in sex and portrays sexual conduct in a patently offensive way and that taken as a whole does not have serious literary, artistic, political, or scientific value is obscene." The Court defined patently offensive in two parts. Patently offensive means representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated and representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals.

The Court seized on the idea that "community" could not be defined nationally and that it was unreasonable for one community's standards to be imposed on another. This gave states, through due process, the authority to define patently offensive within their community. While this new definition provides refinement for the definition and gives flexibility to the idea of "community," it is still very subjective. What one individual may find offensive may not seem so to another. This may be a result of culture, religion or beliefs and further speaks to the uniqueness of human beings. Ultimately, obscenity must be decided through the judicial system, because there is no one opinion. This will continue to be evolutionary as cultural and community standards change and evolve. It is, like most of our laws-subject to change.

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