"Obscenity is 'hard-core' pornography that is so 'offensive' and so lacking in social value that it is denied First Amendment protection."
-- Middleton & Chamberlin, "The Law of Public Communication," p. 336

From 1879 until the early 1930s, American courts followed the Hicklin test, which was taken from an 1868 English case, Regina v. Hicklin. Under this test, judges considered a work to be obscene if any portion of the material had a tendency "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."

In 1933, the Hicklin test was toppled in United States v. One Book Called Ulysses, in which a federal district judge decided to allow James Joyce's "Ulysses" to be imported and sold in America. Judge John M. Woolsey focused on the literary value of the entire work and its effect on a person with average sex instincts. He defined obscene as "tending to stir the sex impulses or to lead to sexually impure and lustful thoughts." The government appealed Woolsey's decision, but a U.S. Court of Appeals upheld his finding that Ulysses was not a dirty book.

In Roth v. United States (1957), the Supreme Court rejected the Hicklin test and ruled that the appropriate test for obscenity is "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest." Writing for the Court, Justice Brennan defined obscenity as "material which deals with sex in a manner appealing to prurient interest . . . having a tendency to excite lustful thoughts [or] as [a] shameful and morbid interest in sex."

Roth was the first constitutional challenge to obscenity law. Prior to this case, according to Susan Dwyer's "The Problem of Pornography," "obscenity cases were not taken to implicate the 1st Amendment, because it was believed that obscenity was not prima facie protected by that amendment. The Court in Roth reaffirms this view, and ruled that both state and federal provisions concerning obscenity were constitutional."

In Jacobellis v. Ohio (1964), Justice Brennan, writing for the Court, said for the material to be obscene, it must be "utterly without redeeming social value." In this case, Justice Potter Stewart said, "I can't define pornography, but I know it when I see it."

In Stanley v. Georgia (1969), the Court unanimously ruled that possession of pornography -- even legally obscene material -- in one's own home was constitutional. "If the First Amendment means anything, it means that a State has no business telling a man sitting in his own house, what books he may read or what films he may watch."

(However, in 1971 and 1973, the Court said the right to view such material at home does not preclude federal laws against mailing obscene works or purchasing them.)

In Miller v. California (1973), the Court, in a 5-to-4 vote, ruled that material could be banned as obscene if it met a reformulated three-part test:

Material must meet all three parts if it is to be ruled obscene and outside of First Amendment protection. Under the decision, only "ultimate sexual acts" could be forbidden, and relevant community standards were local, not nationwide.

In New York v. Ferber (1982), the Court unanimously outlawed child pornography, even if the pictures are not obscene under the Miller test. The Court upheld a New York statute prohibiting the production, exhibition or selling of any material that depicts any performance by a child under the age of 16 that includes "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse or lewd exhibitions of the genitals." Said Justice White for the Court, "The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance."

According to Jethro K. Lieberman's "The Evolving Constitution," the Ferber decision was limited to photographs and movies, not merely verbal descriptions. In 1996, however, Congress made it illegal to use computer technology to appear to depict children in sexual situations.

How is indecent material defined?

Susan Dwyer, "The Problem of Pornography," Wadsworth Publishing Co., Belmont, CA, 1995.
Jethro K. Lieberman, "The Evolving Constitution," Random House, N.Y., 1992.
Kent R. Middleton & Bill F. Chamberlin, "The Law of Public Communication-3rd edition," 1994.

Produced for: University of North Carolina, INLS 310-76: Seminar on Internet Policy and Future Initiatives
Copyright 1997
Joey Senat

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