Obscenity law is the law that regulates what images, speech, and other expressions individuals can lawfully communicate.
Obscenity law concerns itself with banning or suppressing speech that violates standards of good taste and decency.
The area of law balances legitimate communication in a free society with the purpose of public censorship.
The practice of obscenity law involves prosecuting and defending cases that challenge and interpret obscenity laws.
Why Do Obscenity Laws Exist?
Obscenity laws protect a sense of morality in society.
Where obscenity laws exist, it’s because lawmakers believe that some types of speech and expression are so offensive that they ought to be prohibited.
Obscenity laws attempt to maintain and promote standards of integrity and decency in society.
What Does the U.S. Federal Government Have to Say About Obscenity?
There are no federal obscenity laws.
The U.S. government does not expressly prohibit obscene conduct.
In fact, the U.S. government expressly protects some communications in the First Amendment to the U.S. Constitution.
In Supreme Court opinions, the U.S. government has made clear obscenity laws can be constitutional if they’re written and applied properly.
Even though the federal government allows states to create obscenity laws, the federal government isn’t generally in the business of creating obscenity laws.
Early U.S. Laws
The federal government made a couple of attempts to regulate obscenity through U.S. mail and other common carriers.
The Comstock Acts of 1873 prohibited sending obscene material, birth control, and abortive agents through U.S. mail.
Through various court rulings, the courts declared most of the Comstock Act unconstitutional.
However, the rulings did not expressly prohibit state obscenity laws.
State Laws Create Obscenity Laws
Even though the federal government doesn’t have obscenity laws, most states have laws that prohibit obscenities.
The laws vary from state to state.
State obscenity laws come from the state’s police power.
Obscenity laws are criminal laws that prescribe punishments including jail time and fines for distributing obscene material.
While the federal government has limited powers that are reserved by the U.S. Constitution, states have broad powers to regulate the conduct of those within their boundaries.
They may regulate behavior as long as their prohibitions don’t violate U.S. laws.
As long as a state obscenity law doesn’t run afoul of First Amendment protections of free speech and expression, obscenity laws are generally constitutional and enforceable.
What Qualifies as Obscene?
Even though obscenity laws are generally enforceable, the area of law still prompts the question of what materials and speech are obscene and what speech is merely artistic or controversial.
The U.S. Supreme Court’s definition of obscenity has changed throughout the years.
Even though there is a three-part test in place today, the definition of obscenity remains subjective.
In Rosen v. United States, the U.S. Supreme Court first defined obscenity using the British Hinklin test.
Under the standard, material is obscene if it’s likely to end up in the hands of and corrupt those who are open to immoral influences.
The Supreme Court threw out the test in 1957 in favor of the Roth test in the Roth v. United States case.
In the Roth test, a material is obscene if the average person finds that the material appeals to prurient interests.
The Roth standard is based on community standards in play at the time of the material’s distribution.
Finally, in 1973, the U.S. Supreme Court adopted the three-part test that remains in place today.
In the Miller v. California case, the court said that the Roth test still applies.
To determine whether a material is obscene, the first question is whether a typical person using modern standards would find the material appeals to prurient interests.
Second, a material is obscene if it depicts offensive sexual conduct as described by state law.
Third, to be obscene, the material must lack artistic, political, or scientific value.
Censorship and Telecommunications
Obscenity laws also involve regulations regarding what broadcasters can display on radio and television.
According to regulations from the Federal Communications Commission, broadcasters can’t publish anything obscene at any time.
They also can’t publish anything indecent between the hours of 6:00 a.m. and 10:00 p.m.
They define indecent as anything that’s offensive compared to general community standards.
With regulations that are so vague, it can be hard for broadcasters to know how to comply with regulations while still maintaining creative control over the content that they publish.
In FCC v. Pacifica, the U.S. Supreme Court ruled that profanities and vulgarities must be repetitive and frequent in order to rise to a level that warrants a sanction from the FCC.
In addition to broadcasting issues, obscenity laws may also involve emerging issues of law.
For example, the Reno v. ACLU, the U.S. Supreme Court ruled that obscenity regulations do not extend to the internet.
Obscenity Laws Remain Controversial
As one judge said, what one man believes is vulgar, another man sees as just a song lyric.
Obscenity laws are controversial because standards of decency and morality vary greatly from person to person and community to community.
In addition, standards of morality can change.
Prohibitions that seemed justifiable to some at the time, such as a ban on sending contraceptives through the mail, might seem offensive only a few years later.
Attorneys who practice obscenity law have to balance all of these considerations as they advocate for public interests or on behalf of their private clients.
Practicing Obscenity Law
For attorneys who practice obscenity law, the practice involves fact-specific inquiries into community standards.
Even though the classification of material as obscene depends on modern community standards, within a community, individuals might have varying opinions as to what the modern community standard is.
Prosecuting attorneys have discretion in their charging decisions.
They must exercise their discretion when they decide whether to bring charges of obscenity.
At the same time, defense attorneys must aggressively advocate for their clients by arguing to the jury that the material in question does not offend community standards of decency.
In fact, presenting evidence to the jury of the community’s standards of decency can be an effective defense strategy.
Who Practices Obscenity Law?
Generally, obscenity lawyers are criminal attorneys with a practice in state law.
Obscenity laws are generally criminal laws.
They arise when a state prosecutor or district attorney accuses an individual of distributing obscene materials.
Obscenity lawyers usually have a broad criminal law practice that includes taking obscenity cases as they arise.
If the case becomes a constitutional question for a state appeals court or federal court, an obscenity attorney is likely to be an attorney with experience in appellate work and constitutional law issues.
Obscenity lawyers are criminal trial lawyers.
Because obscenity cases are often subjective, they tend to result in jury trials at high rates.
Obscenity lawyers should be comfortable zealously advocating for their position whether they represent their clients or they represent the public at large.
Obscenity lawyers should also be familiar with First Amendment issues and how federal, constitutional issues may impact state obscenity laws.
Obscenity law can be an important and significant part of a criminal law practice.
Although most obscenity attorneys have a broader practice than obscenity cases alone, obscenity law can still be a significant part of criminal law practice and a specialty area for dedicated attorneys.
Why Become an Obscenity Lawyer?
An attorney may have a number of varying motives for practicing obscenity law.
For defense attorneys, practice in the field involves defending freedom of speech and constitutional rights.
Lawyers who have a personal mission to defend freedom as they see it may enjoy taking obscenity cases.
On the other hand, lawyers who enjoy protecting public morality as they see it may also enjoy working on obscenity law cases.
In addition, attorneys who want to work in constitutional law and work on constitutional law cases may enjoy the philosophical questions posed by obscenity cases.
Advocating for the Client’s Position
Obscenity law is a matter of legal advocacy.
Just as the state’s attorney argues that material is obscene and that it should be censored, a defense attorney must argue the opposite.
Obscenity laws continue to question the limits of free speech and expression.
Attorneys in the field grapple with interesting philosophical questions as they argue cases that are fact-specific and often ambiguous.
Obscenity law may provide an interesting and challenging area of legal practice for attorneys who are ready to advocate for their clients in this niche area of criminal and constitutional law.