What makes something legally obscene

Many readers will wonder how attempts to regulate supposedly obscene speech and other expressions fared when they bumped up against our right to freedom of speech, guaranteed in the United States Constitution. Perhaps surprisingly, free speech gave way—courts determined that the First Amendment did not protect obscenity. They decided that the states could regulate obscene matter because, by definition, it lacks any redeeming social value. The Roth test proved to be very difficult to apply consistently.

Courts reached contrary results when considering identical material. For example, in the s courts in some states deemed Henry Miller's book Tropic of Cancer obscene, while courts in others held that it was not. The legal status of the book differed depending on the state in which it was published or sold.

The Supreme Court finally considered the book in , deciding that it was not obscene. Justice Stewart penned his notorious description of obscenity in Jacobellis v. Ohio , also decided in In that case, the manager of an Ohio theater had been convicted for exhibiting the French film "The Lovers.

In his inimitable way, Justice Stewart opined that obscenity must be limited to "hard-core pornography. The Supreme Court eventually moved from the Roth test to a slightly more comprehensive view of obscenity. Under the approach adopted in Miller v. California , before a state bans a form of expression on the grounds that it is obscene, it must establish that the material, when taken as a whole:.

Courts still use the Miller test to differentiate between obscene matters and those protected under the Constitution. The states are free to establish more liberal interpretations of obscenity, but they may not apply standards that are any more exacting. Yet, no matter the standard involved, the line between constitutionally protected speech and obscenity is not only thin, but difficult—if not impossible—to pin down.

Currently, obscenity is evaluated by federal and state courts alike using a tripartite standard established by Miller v. Prior to Miller, judges testing for obscenity invoked the wisdom handed down by the Court in Roth v. United States.

A landmark case, Roth ruled that obscene material was not protected by the First Amendment and could be regulated by the States rather than by a singular, Federal standard.

Instead, it touted reliance on community standards of a more local nature, which threw the arduous task of defining obscenity back upon the States. The Supreme Court has repeatedly grappled with problematic elements of the Miller test for obscenity. However, to date, no standard has replaced it. In , Reno v. However, the Court also demanded that COPPA be enjoined and the case be remanded to the Third Circuit, where the Court found COPPA created a content-ban on adult transmissions that was overly broad, intrusive, and restrictive in its efforts to protect children from adult speech.

Contemporary community standards, as stated before, are those established by what is generally accepted in the community as a whole; that is to say, by society at large or people in general, and not by what some groups of persons may believe the community as a whole ought to accept or refuse to accept. It is a matter of common knowledge that customs change and that the community as a whole may from time to time find acceptable that which was formerly unacceptable.

The third test to be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it portrays explicit sexual conduct. All three of these tests must be met before the material in question can be found to be obscene. If anyone of them is not met the material would not be obscene within the meaning of the law.