What is Obscenity?

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Sexually explicit movies, photographs, books, magazines and internet websites are presumed to be protected by the First Amendment to the United States Constitution unless proven to be obscene.  Commercial distribution of obscene material is a felony under state and federal law.  The federal sentencing guidelines call for a lengthy prison sentence for those convicted of interstate transportation of obscene material.  Distribution of obscene material can also form the basis of a racketeering prosecution.  However, personal, private possession of obscene material is protected by the constitutional right of privacy and cannot constitute a crime.  In other words, you can possess it but you can't sell it. 

Published materials are determined to be obscene under the three-part test of Miller v. California,413 U.S  15 (1973).  A work is obscene if: (1) it is a patently offensive depiction of sexual conduct according to contemporary community standards; (2)  it appeals to a prurient interest according to contemporary community standards; and (3) it has no serious artistic, political, literary or scientific value.  The average adult person in the community is the measure of contemporary community standards.  Prurient interest means an unhealthy, abnormal interest in sex.  While community standards apply to the first two prongs of the test – patently offensive and prurient interest – the third prong of the test is measured by an objective reasonable person standard.  The prosecution must prove all three elements of the test beyond a reasonable doubt in order to obtain a conviction.

The problem with the Miller test is that it is inherently vague although it has been repeatedly upheld against vagueness challenges by the courts.  The determination of obscenity is a jury question meaning that it's almost impossible to know beforehand whether the material you are selling is obscene.  In recent years, obscenity prosecutions have been relatively rare.  This is perhaps a result of wider dissemination of sexually explicit material on the Internet and pay per view as well as greater public acceptance of sexually oriented entertainment.    A few prosecutions have taken place in the more conservative areas of the country or have been based on extreme material such as that depicting bestiality, violence, bodily elimination or incest.  However, selling porn is a risky business and anyone who goes into it is taking a chance on being prosecuted.

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