Because of my recent research into different aspects of the law regarding journalism, I came across some interesting information about obscenity. You all may remember some of my recent blog posts regarding sex and violence in the media and entertainment. This started another domino effect in my head about the different ways these types of media and entertainment consumption affect us.
In a world filled with different facets of obscene and grotesque aspects, the law remains murky and uncharted in many ways. The Constitution has been interpreted in a multitude of ways throughout the years and translating the level of obscenity is one of the more contested forms of government censorship.
Obscenity and rulings on it can be dated back to the 19th century when a man was fined for painting a picture with questionable intentions involving a man and woman. Times have changed as laws and precedents have been set that have shaped and formed the very fabric of obscenity laws. Even though the first real obscenity laws and regulations were formed in 1873, everything changed when the Miller test was used in Miller v. California.
In 1973, the Supreme Court set a monumental precedent by ruling in the case of Miller v. California. A man by the name of Marvin Miller sent five brochures to a restaurant containing a myriad of advertisements for books and film with sexual connotations. The pictures found within the brochures were sexual in nature and contained men and women engaging in sexual acts. The recipient of the brochures filed a complaint against Miller and everything began a domino effect as a result.
An earlier case in 1957 had the Supreme Court set a precedent regarding obscene and sexual material. Roth v. U.S. forced the Supreme Court to define obscenity in a more refined way. This paved the way for the Roth-Memoirs test, which can be described as a narrow-minded view of substantial and effective obscenity definition. The Roth-Memoirs test follows three steps, just like the Miller test, but are far less comprehensive in nature.
In the earlier case of Roth v. U.S., a majority decision regarding the definition of obscenity was never met, however, the Miller test was a different story. The Supreme Court made a consensus regarding the definition by assessing the accused material in three steps. The first step asks if the material, according to community standards at the local level, is sexual in nature to the average person. The second question regards the sexually offensive way the material is presented, specifically designated by state law. The final step, and possibly the most important one, is whether the material contains or lacks, “serious literary, artistic, political or scientific value.” All components of the test must be met to classify something as obscene.
Following through with the steps of this test is essential, according to the Supreme Court, but the main issue brought forth with the test lies in the term, “community standard.” Community standards, as defined and interpreted by the Supreme Court, most often refer to state standards. By that definition, this means all cultures and communities within the state all follow the exact same standard. Cultural differences aside, this is a narrow definition that seeks to subset a person or people into a single molded idea. The standard of the state which the material was in when the case is presented is the community standard used in the test.
The Miller test is successful in its original form, but the idea behind community standards is flawed. Community standards cause issues simply because the cultural facets of a community vary greatly between different communities. For instance, if the obscene material in question was manufactured in California, then shipped to New York, but was seized in Kansas, the applicable state laws of Kansas would be applied to the case and questioned in the three steps of the Miller test. This brings into question the definition of community standards and how two different cultures can vastly differ in normality.
Another problem with trying to gauge community standard is what classifies as the community. State laws exist that help define what is considered a prurient interest, or expressing an excessive interest in sexual ordeals, but does not classify each individual person. Granted, the level of sexual interest has lawful lines that cannot be broken, but on the lower end of the spectrum, every person is different. Limiting the ideas of sexual interest is an almost extreme form of censorship, which the Miller test does encourage.
Federal regulations are in place that restrict the distribution of obscene material. State laws mirror federal feelings in most cases, especially those revolving around unlawful pornography. The Miller test makes it blatant that the states have a strong role in determining, recognizing, and ruling on obscene material with the idea that community standards are state standards. The states take steps toward limiting the distribution of obscene material by setting difficult adult-business licenses and zoning ordinances, making it so that adult material can only be purchased in specific places. Those ordinances dictate specific communities and areas where the material is allowed to be sold, most notably away from schools and residential areas.
Another practice implemented by most state governments to help alleviate the distribution of adult material is taxing adult material the same way cigarettes and alcohol are taxed. The internet provides a multitude of sources for obscene material, so by heavily taxing materials that are legal but still obscene in nature, people would be less likely to purchase them. This seems pointless as the Internet is an inherent catalyst for pornographic material. Even though laws are in place for obscenity, they have become stagnant and ineffective at truly stopping and censoring obscene material.
Consequently, this has caused the government to take certain strides in trying to regulate obscenity in different mediums. For example, the United States Postal Service will not ship anything considered obscene, especially sexual material. The government has even gone so far as to attempt a heavier policing of goods traded on the internet. Another example would be the censorship of film. This seems to be far more infrequent than it once was, but it is prevalent when theaters will no longer show NC-17 movies. Adult video stores are also heavily scrutinized, and without a proper license, the possibility of jail time and more severe punishments are always on the table.
Obscenity, including the myriad of definitions of the word, has only taken forefront importance in the government’s eyes in the last century. The most prominent step in determining a material’s obscenity lies with the Miller test, a test designed by the Supreme Court in 1973. This test, while still holding residence in legal doctrine, has many flaws and is heavily criticized as ineffective in the legal academic world. Federal and state governments continue to work toward restricting and limiting the amount of distributed obscene material. In the end, however, a vast array of interpretations, allegations, regulations, and otherwise will continue to flow through the world as the courts attempt to find a resolute way to stop it all within reason.