Obscenity and the Law

It’s interesting to see how they decide what can be censored and what can’t. I think that the government goes overboard on somethings, but they’re not really things that affect me so I’m not that concerned.

“Obscene materials of all kinds– words, publication, photos, videotapes, films– are not protected by the 1st Amendment. Most states ban the publication, sale or possession of obscene material, and Congress bans its shipment in the mails. Because obscene material is not protected by the 1st Amendment, it can be banned without even an attempt to prove that it results in antisocial conduct… It is not necessary to show that obscene material would result in a clear and present danger to society, the test used to decide the legitimacy of speech. In order to ban obscene materials the government need only prove that they are obscene.”

“Defining “obscenity” has confounded legislatures and the courts for years, however….. After many fruitless efforts by the Supreme Court to come up with a workable definition of  “pornography” or “obscenity,” a frustrated Justice Potter Stewart wrote the now-famous quote in 1974, “I shall not today attempt further to define [hard-core pornography]…. But I know it when I see it.””

Politics in America, 8th Ed. pg. 508; Thomas R. Dye and Bartholomew H. Sparrow

Isn’t that a great quote at the end? You can’t put a description on it so basically she’s just gonna use her best opinion. I reallt think the Supreme Court is supposed to put more specific and define meanings into things or we as the public won’t know what to do.

” The Court’s first comprehensive effort to define “obscenity” came in Roth v. United States (1957)…. it [the Court] defined “obscenity” somewhat narrowly: ” Whether to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interests.

For some explanation because, sadly, I will admit I had to look it up to make sure of the definition, prurient means having or causing lust or desires. That’s the summarized definition. So basically obscenity only has to do with sexual things by this definition.

“Note that the material must be obscene to the average person, not to children or particular groups of adults who might be especially offended by pornography. The standard is “contemporary,” suggesting that what was once regarded as obscene might be acceptable today. Later, the community standard was clarified to mean the “society at large,” not a particular state or local community. The material must be “considered as a whole” meaning that even if a work includes some obscene material, it is still acceptable if its “dominant theme” is something other than “prurient” (There’s that stupid word again.) The Court added that a work must be “utterly without redeeming social or literary merit” in order to be judged obscene. The Court never really said what a “prurient” interest was but reassured everyone that “sex and obscenity are not synonymous.”

This time they at least began to give it a definition, but it’s still vague and subject to broad interpretation. Broad interpretation is never really good in law.

“The effect of the Roth decision, and the many and varied attempts by lower courts to apply its slippery standards, tended to limit law enforcement efforts to combat pornography during the 1960’s and 70’s…… So the Supreme Court tried again, in Miller v. California (1973) to give law enforcement officials some clearer standards in determining obscenity. Although the court retained the “average person” and “contemporary” standards, it redefined “community” to mean the local community rather than the society at large…. It rejected the earlier requirement that the work had to be “utterly without redeeming social value” in order to be judged obscene, and it substituted instead “lacks serious literary, artistic, political, or scientific value.”

This is a better attempt, but it just goes to show you really cannot define obscenity. What is obscene to one person, may be perfectly fine to another. The court really has no right to limit expression of any kind.


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