Obscenity

Obscenity

Obscenity remains a controversial topic, especially when it often comes into conflict with first amendment rights regarding freedom of speech, expression, and artistic intent under the constitution. Constitutional standards designed to created distinctions between obscenity and freedom of expression have been developed by case law in an attempt to separate the two with varying success. The generally accepted definition in Miller v. California,1 of “obscene matter,” is matter that, taken as a whole, does all of the following:

(a) Appeals to the prurient interest of the average person, applying contemporary statewide standards.
(b) Depicts or describes sexual conduct in a patently offensive way.
(c) Lacks serious literary, artistic, political, or scientific value.

“Matter” means in this context the method by which something is published, depicted or communicated, and includes but is not limited to film, photographs, videotape, computer hardware and software, books, and newspapers.2 Using obscene matter in advertising is a misdemeanor.3 Courts have wrestled, and continue to wrestle with what constitutes obscenity.

One particular area of obscenity law that is less controversial is matter which depicts minors, usually referred to as child pornography. In California it is a felony for a person to knowing depict a person under the age of 18 personally engaging in actual or simulated sexual conduct.4 This includes sending or bringing such matter into the state for sale or distribution. Or within the state to possess, publish, duplicate, or print it, with the intent to distribute, exhibit it or sell it, or to offer to distribute, exhibit or sell it.






1 Miller v. California, 413 U.S. 15 (1973)
2 Section 311 of the California Penal Code
3 Section 311.5 of the California Penal Code
4 Section 311.2(b) of the California Penal Code