If pornography is not obscene then I really don’t know what obscenity is. But I have some important clues about obscenity because I do know that it has to do with the communication of sexual content. The other thing I’ve learned is that obscenity does not have First Amendment privileges and can be banned, regulated without prevention (LEMO, n.d). The following will discuss how two courts cases Roth (1957) v. United states and Miller v. California (1973) have influenced the creation of the legal definition of obscenity in the United States and why it is not protected by the First Amendment, and how obscenity laws can be applied when creating digital messages.
Roth v. United States (1957) and Miller v. California (1973)
These are two cases important to creating the standards by which to test obscenity. Both cases involve mailing campaigns of sexually explicit content.
Roth v. United States. Roth, who operated a book-selling business in New York, was convicted of violating a federal obscenity statute by conducting a mailing campaign of obscene advertisements and a book (CKC, n.d-b). This case held that obscenity depended on “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as whole appeals to prurient interest” (Patterson & Wilkins, 2014 p.438 para 3). And although this case upheld that obscenity was not protected by the First Amendment because it is “utterly without redeeming social importance” (Patterson & Wilkins, 2014 p.438, para 2), it did not clearly differentiate sex from obscenity. In short, it decided that obscenity is determined by community standards and that it in its entirety is communication that has no social value.
Miller v. California. During this case, Judge Brennan, the same Judge that the decided Roth v. United States, took advantage of his second opportunity to create standards that identify obscenity. Like Roth, Miller also conducting mass a mailing campaign. His advertised the sale of “adult,” material and was convicted of violating California statute (CKC, n.d-a). In this case the court held that the guidelines for identifying obscenity are that the average person or a community must find that the contents are appeals to prurient interests, is patently (or ridiculously obvious) offensive as defined by state law, (Paterson & Wilkins, 2014) and the works lacks serious literary, artistic, political, or scientific value” (CKC, n.d-a para. 3), or socially redeeming value. The other important specific that this case determined is that in addition to community standards location would also play a part in determining obscenity as what may be considered obscene, for example, in Texas may be perfectly normal in Las Vegas (Patterson & Wilkins, 2014).
Obscenity laws and digital messages. The Federal Trade Commission, an administrative federal agency, which prohibit the broadcast of obscene material on television during specific times, obscenity is also prohibited by law from radio broadcast (FCC, n.d). The internet, however, is not regulated by law or agencies. So technically anyone could post whatever they want and could cross the obscenity line. One idea is that one would have to post something highly extreme to incite a court case and that would be the least of their worries (LEMO, n.d). For professionals, organizations, brands it is important to be aware of the obscenity guidelines, not necessarily for legal reasons but for ethical and reputational reasons. Publishing content that one’s audience considers inappropriate and obscene could likely cause unrecoverable reputational damage. Again, that may depend on who you are and where you are. If you a prostitution company in Las Vegas, it just might work to boost business.
Chicago-Kent College of Law at Illinois Tech [CKC] (n.d.-a). Miller v. California. Oyez.
Retrieved from https://www.oyez.org/cases/1971/70-73
Chicago-Kent College of Law at Illinois Tech [CKC] (n.d.-b) Roth v. United States. Oyez.
Retrieved from https://www.oyez.org/cases/1956/582
Federal Communications Commision [FCC] (n.d)Obscenity, indecency & profanity – fcc.gov.
Law and Ethics Module Six Overview [LEMO] (n.d) Module six Indecency and Obscenity: How
far is too far? Southern New Hampshire University
Patterson, P., Wilkins, L. (2014) Media Ethics: Issues and cases 8th (ed). New York, NY:
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