I. What Is Pornography?
The term “pornography” is a generic, not a legal term. As noted by the Supreme Court in its Miller v. California, 413 U.S. 15 (1973) obscenity case:
“Pornography” derives from the Greek (harlot, and graphos, writing). The word now means “1: a description of prostitutes or prostitution 2. a depiction (as in a writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement.” Webster ’s 3rd New Intern. Dictionary [Unabridged 1969].
II. What Is Obscenity?
The term “obscenity” is a legal term, and in Miller v. California, supra the Supreme Court established a three-pronged test for determining whether a “work” (i.e., material or a performance) is obscene and therefore unprotected by the First Amendment. To be obscene, a judge and/or a jury must determine:
First, that the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; AND second, that the work depicts or describes in a patently offensive way, as measured by contemporary community standards, “hardcore” sexual conduct specifically defined by the applicable law; AND third, that a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political and scientific value.
Side note: Typical “hardcore pornography” (e.g., a magazine, DVD or Web site) consists of little if anything more than one depiction of hardcore sex after the other (i.e., it’s “wall-to-wall” sex).
III. Obscenity Is Not Protected By The First Amendment
A. First Amendment was not intended to protect “every utterance”
The First Amendment reads: “Congress shall make no law …prohibiting the free exercise [of religion]; or abridging the freedom of speech or of the press.”
But as Justice Brennan observed in Roth v. United States, 354
B. First Amendment intended to protect ideas and debate, not obscene materials
In the 1973 obscenity case, Miller v. California, 413
[I]n our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a “misuse of the great guarantees of free speech and free press.”
C. Enforcement of obscenity laws is not “censorship”
There is a difference between a prior restraint upon publication and subsequent punishment.
Obscenity laws are enforced after publication. In Near v. Minnesota, 283 U.S. 697, 714-715 (1931), the Supreme Court said that the “main purpose” of the freedom of speech and press clause is “‘to prevent all such previous restraints upon publications…’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.”
Rest assured that our nation’s founding fathers did not lay their fortunes, sacred honor and lives on the line so that citizens could produce and distribute pornography.
IV. Governmental Justifications For Obscenity Laws
In Paris Adult Theater I v. Slaton, 413
Here is another list of the harms of pornography:
- Contributes to the moral corruption of children
- Contributes to the epidemic of sexually transmitted diseases, including AIDS
- Contributes to the breakup of marriages
- Contributes to sexual exploitation of children, forcible rape, and sexual trafficking
- Contributes to the erosion of decency
V. Federal Obscenity Laws
Federal laws relating to obscenity crimes are contained in the following titles/sections of the U.S. Code. The 93 U.S. Attorneys (each state has at least one) enforce the Federal obscenity laws. FBI Agents, Postal Inspectors and Customs Officers investigate violations of Federal obscenity laws.
18 U.S.C. 1461 – Mailing obscene matter
18 U.S.C. 1462 – Importation or use of a common carrier to transport obscene matter
18 U.S.C. 1464 – Broadcasting obscene language
18 U.S.C. 1465 – Interstate transportation of obscene matter
18 U.S.C. 1466 – Wholesale and retail sale of obscene matter which has been transported in interstate commerce (must be engaged in business of selling or transferring obscenity)
18 U.S.C. 1468 – Distribution of obscene matter by cable or satellite TV
47 U.S.C 223 – Making an obscene communication by means of telephone
Sections 1462 and 1465 cited above also prohibit distribution of obscenity on the Internet. To report websites that may be trafficking in obscene materials, go to Obscenitycrimes.org.
“Dealing in obscene matter” is also a predicate offense under the Federal Racketeer Influenced and Corrupt Organizations (RICO) statute. (Title 18, Section 1961-1968).
If your complaint is about hardcore pornography distributed “offline” (videos, DVDs, magazines, cable or satellite TV), you will find an “off-line” federal complaint form at ObscenityCrimes.org.
VI. Public Opinion
According to the results of a national opinion poll commissioned by Morality in Media and conducted by Harris Interactive in April 2008, 75% of adult Americans said they would support the next President were he to do all in his or constitutional power to ensure that federal obscenity laws are enforced vigorously. According to a survey conducted by
VII. Helpful Articles and Case Law Studies
Articles on the following subjects are available at Obscenitycrimes.org:
- How to get porn out of video stores
- What to do about mail porn
- What to do about hardcore pornography on cable/satellite
- Fighting back against ‘adult’ bookstores
- Zoning ‘adult’ businesses
- Open booth laws to curb sexually transmitted diseases
- Nude entertainment in bars
The National Obscenity Law Center (NOLC) has also published case law studies to address the problems of nude dancing, peep show booths, escort services, swingers clubs, and massage parlors.
(This article originally appeared in the July/August/September Morality in Media Newsletter. All rights reserved. Used by permission.)
