obscenity

 

Definition

The definition of obscenity in the U.S. is rooted in anti-obscenity laws developed in England. The definition of obscenity has evolved over time as described in the following court decisions and congressional statutes:

The Tariff Act (1842).

The Hicklin Test (1857).

The Comstock Law (1873).

The Roth Test (1957).

The Miller Test (1973).

The Child Pornography Prevention Act (1996).

 

The Tariff Act (1842)

First anti-obscenity law in America and was shaped by English-style decency laws.

It banned the importation of indecent material such as:

Prints.

Paintings.

Lithographs.

Engravings, etc.

 

The Hicklin Test (1857)
  • Was applied in England and was fashioned after England's Lord Campbell's Act (1846).
  • It allowed for the seizure of indecent material and was used to prosecute and convict Henry Scott for publishing an anti-Catholic pamphlet, The Confessional Unmasked.
  • On appeal, England's Chief Justice Alexander Cockburn overturned a reversal of the conviction, thus setting up the Hicklin Test: Even isolated passages in a publication were likely to affect the most susceptible in society.
  • The Hicklin Test was widely adopted in America.
  • Benjamin Hicklin was the official initially tasked with destroying copies of the pamphlet, an order he deemed unnecessary as he argued that Scott was a moral citizen and the pamphlet rightfully exposed corruption in the Catholic Church.

 

The Comstock Law (1873)
  • Officially called the Anti-obscenity Act of 1873.
  • it was the result of Anthony Comstock, an American moral crusader of those times.
  • The act extended powers to the Postal Service to ban mailings of any obscene publications.
  • The law never clearly defined obscenity.
  • However, as a result, the war against indecent material in the U.S. lasted for decades.

 

The Roth Test (1957)

Samuel Roth, a bankrupt New York publisher and author, was convicted of distributing banned pornography. On appeal, the Supreme Court upheld the conviction and developed the Roth Test to define obscene material:

  1. Obscene material lacks redeeming social importance.
  2. If taken as a whole, the patently offensive (obscene) material appeals to the prurient interest to...
  3. The average person, applying contemporary community standards.

 

The Miller Test (1973)

In Miller v. California (1973), the Supreme Court ruled that obscene material does not enjoy First Amendment protections if:

  1. The "average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest
  2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
  3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

 

The Child Pornography Prevention Act (1996)

This act banned:

  1. The use of minors in sexually explicit roles – including non-obscene roles.
  2. The use of CGI depiction of minors.
  3. The possession of such works.

In Ashcroft v. Speech Coalition, the Supreme Court ruled that parts of the Act were unconstitutional:

  1. Banning works based on the resemblance of CGI images to real children is overbroad.
  2. The mere tendency of speech to encourage unlawful acts is not sufficient for a ban.
  3. The law creates crimes without victims.
  4. Not all depiction of minors in sexual roles contravenes community standards. (For instance, horror movies that depict demon-possessed children would be classified as obscene – think The Excocist).
  5. Teenage sex has been portrayed artistically in film.

 

topics | Home