How to Understand the Legal Definition of Obscenity

The right to free speech is one of the fundamental freedoms protected by the US Constitution. However, the First Amendment does not protect certain forms of speech, including those which have been determined to be "obscene." While that sounds easy enough to understand, the courts have had a difficult time nailing down a specific, legal definition of what constitutes "obscene" speech. What's considered obscene to one person might be acceptable to others. One key Supreme Court decision has shaped our understanding obscenity for the last 30 years.

Instructions

Difficulty: Moderately Challenging

1. Read the Supreme Court's most famous obscenity decision. In Miller vs. California, the court established three guidelines to determine whether something can be legally defined as obscene. The wording of the decision can be tricky to understand, so you'll need to evaluate material by Miller's "three-pronged test."
2. Evaluate questionable material to determine whether or not "the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest." The legally tricky element of this test is the idea of "community." What's considered sexually explicit to the community in San Francisco might be very different from the community in Topeka.
3. Decide whether the material in question "depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law." Laws on sexual activity such as sodomy can vary from state to state, so make sure to read about the standards in your state in relation to what would be "patently offensive."
4. Determine whether the work in question, when "taken as a whole, lacks serious literary, artistic, political or scientific value." The phrase "taken as a whole" is crucial to understanding the third prong in the Miller test, as it determines that sexually explicit images must be evaluated within their original dramatic or artistic context. For instance, the infamous sex scene in "Last Tango in Paris" must be evaluated as one part of a larger dramatic story and not an individual sex scene.
5. Decide whether the work in question meets all three of the aspects in the Miller test. Unless all three definitions can be applied to a work, it can't be legally declared obscene. Unlike the other two prongs in the Miller test, the third isn't defined by individual community standards, but by national standards.

Tips & Warnings

• It can be difficult to understand the legal definition of obscenity. When he was forced to define obscenity, Supreme Court Justice Potter Stewart famously remarked, "I know it when I see it." Whether they've intended to or not, government and the courts have adopted a similar philosophy by deciding obscenity charges on a case-by-case basis.
• If you're worried whether or not something you've created could meet the legal definition of "obscene," rest assured that in most cases you'll have enough legal gray area to fight an obscenity charge. In his dissent to the Miller decision, Justice Douglas wrote, "The idea that the First Amendment permits government to ban publications that are ‘offensive' to some people puts an ominous gloss on freedom of the press."