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Obscenity (in Latin obscenus, meaning "foul, repulsive, detestable"), is a term that is most often used in a legal context to describe expressions (words, images, actions) that offend the prevalent sexual morality of the time. It is often replaced by the word salaciousness. Despite its long formal and informal use with a sexual connotation, the word still retains the meanings of "inspiring disgust" and even "inauspicious; ill-omened", as in such uses as "obscene profits", "the obscenity of war", etc. It can simply be used to mean profanity, or it can mean anything that is taboo, indecent, abhorrent, or disgusting. The definition of obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities. Many cultures have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions: usually including, but not limited to, pornographic material. As such censorship restricts freedom of expression, crafting a legal definition of obscenity presents a civil liberties issue.
[edit] United States obscenity lawThe First Amendment to the Constitution of the United States states:
Thus, the United States of America has constitutional protection for freedom of speech, which is not interpreted to protect every utterance, despite the lack of exception clauses (rare in a national constitution) in the text of the First Amendment. The Supreme Court has found that, when used in the context of the First Amendment, the word "obscenity" is usually limited to content that directly refers to explicit sexual acts that are publicly accessible, though it has at times encompassed other subject matters, such as spoken and written language that can be publicly transmitted and received by the general public. The legal term of obscenity is usually denoted to classify a distinction between socially permitted material and discussions that the public can access versus those that should be denied. There does exist a classification of those acceptable materials and discussions that the public should be allowed to engage in, and the access to that same permitted material—which in the areas of sexual materials ranges between the permitted areas of erotic art (which usually includes "classic nude forms" such as Michelangelo's David statue) and the generally less respected commercial pornography. The legal distinction between artistic nudity, and permitted commercial pornography (which includes sexual penetration) that are deemed as "protected forms of speech" versus "obscene acts", which are illegal acts and separate from those permitted areas, are usually separated by the predominant culture appreciation regarding such. However, no such specific objective distinction exists outside of legal decisions in federal court cases where a specific action is deemed to fit the classification of obscene and thus illegal. The difference between erotic art and (protected) commercial pornography, vs. that which is legally obscene (and thus not covered by 1st Amendment protection), appears to be subjective to the local federal districts inside the United States and the local moral standards at the time. In fact, federal obscenity law in the U.S. is highly unusual in that—not only is there no uniform national standard, but rather, there is an explicit legal precedent (the "Miller test", below) that all but guarantees that something that is legally "obscene" in one jurisdiction may not be in another. In effect, the First Amendment protections of free speech vary by location within the U.S., and over time. With the advent of Internet distribution of potentially obscene material, this question of jurisdiction and "community standards" has created significant controversy in the legal community. (See United States v. Thomas, 74 F.3d 701 (6th Cir. 1996)) Even at the federal level, there does NOT exist a specific listing of which exact acts are to be classified as "obscene" outside of the legally determined court cases. Title 18, chapter 71 of the USC deals with obscenity, the workings out of the law described in this article, most notably the aforementioned Miller test. Former Justice Potter Stewart of the Supreme Court of the United States, in attempting to classify what material constituted exactly "what is obscene", famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced . . . [b]ut I know it when I see it . . ."[1] However, in the United States, the 1973 ruling of the Supreme Court of the United States in Miller v. California established a three-tiered test to determine what was obscene - and thus not protected, versus what was merely erotic and thus protected by the First Amendment. Delivering the opinion of the court, Chief Justice Warren Burger wrote,
Justice Douglas wrote a dissenting opinion that eloquently expressed his dissatisfaction with the ruling:
In U.S. legal texts, therefore, the question of "obscenity" presently always refers to this "Miller test obscenity". As articulated in several sections of 18 USC Chapter 71, the Supreme Court has ruled that it is constitutional to legally limit the sale, transport for personal use or other transmission of obscenity. However, it has ruled unconstitutional the passing of law concerning personal possession of obscenity per se. Federal obscenity laws at present apply to inter-state and foreign obscenity issues such as distribution; intrastate issues are for the most part still governed by state law. "Obscene articles... are generally prohibited entry" to the United States by U.S. Customs and Border Protection.[4] At present, there are only two legally protected areas of explicit commercial pornography. The first is "mere nudity" as upheld in "Jenkins v. Georgia , 418 U.S. 153 (1974)" whereby the film "Carnal Knowledge" was deemed not to be obscene under the constitutional standards announced by Miller. As declared by the judge at trial "The film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards)." This was upheld time and again in later cases including "Erznoznik v. City of Jacksonville FL, 422 U.S. 205 (1975)" in which the city of Jacksonville stated that showing films containing nudity when the screen is visible from a public street or place is a punishable offense. The law was determined to be invalid as it was an infringement of First Amendment rights of the movie producer and theatre owners. The second is single male to female vaginal-only penetration that does NOT show the actual ejaculation of semen, sometimes referred to as "soft-core" pornography wherein the sexual act and its fulfillment (orgasm) are merely implied to happen rather than explicitly shown. In June 2006, the U.S. Federal government in the district of Arizona brought a case against JM Productions of Chatsworth, Calif. in order to classify commercial pornography that specifically shows actual semen being ejaculated as obscene. The four films that were the subject of the case are entitled "American Bukkake 13", "Gag Factor 15", "Gag Factor 18" and "Filthy Things 6". The case also includes charges of distribution of obscene material (a criminal act under 18 USC § 1465 - "Transportation of obscene matters for sale or distribution") against Five Star DVD for the extra-state commercial distribution of the JM Productions films in question. The case was brought to trial on October 16th, 2007. At the first date of trial, the US DoJ decided not to pursue the JM obscenity case any further, leaving the matter without resolution, possibly fearing the formal establishment of films depicting ejaculation as a nationally protected material if the trial was decided in favor of JM Productions. [5] While the US DoJ decided to abandon its legal pursuit of the JM productions, U.S. District Court Judge Roslyn O. Silver has forced the legal case against Five Star DVD distributors to continue, whereby the legal classification of whether "sperm showing through ejaculation" is an obscene act and thus illegal to produce or distribute will be definitely answered in order to convict Five Star of being guilty of "18 USC 1465 - Transportation of obscene matters for sale or distribution". [6] The jury found that Five Star Video LC and Five Star Video Outlet LC were guilty of "18 USC 1465 - Transportation of obscene matters for sale or distribution" for having shipped JM Productions' film "Gag Factor 18" [7]. However, the specific content in that film that the jury deemed to actually fulfill the legal qualification of being "obscene" has not been specifically stated at this point. [edit] Obscenity v. indecencyMain article: Indecency The differentiation between indecent and obscene material is a particularly difficult one, and a contentious First Amendment issue that has not fully been settled. Similarly, the level of offense (if any) generated by a profane word or phrase depends on region, context, and audience. [edit] Non image-based obscenity cases in the USAWhile most of the obscenity cases in the United States have revolved around images and films, there have been many cases that dealt with textual works as well. The classification of "obscene" and thus illegal for production and distribution has been judged on printed text-only stories starting with "Dunlop v. U.S., 165 U.S. 486 (1897)" which upheld a conviction for mailing and delivery of a newspaper called the 'Chicago Dispatch,' containing "obscene, lewd, lascivious, and indecent materials", which was later upheld in several cases. One of these was "A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Mass., 383 U.S. 413 (1966)" wherein the book "Fanny Hill", written by John Cleland c. 1760, was judged to be obscene in a proceeding that put on the book itself on trial rather than its publisher. Another was "Kaplan v. California , 413 U.S. 115 (1973)" whereby the court most famously determined that "Obscene material in book form is not entitled to any First Amendment protection merely because it has no pictorial content." However, the book was labeled "erotica" in the 1965 case (206 NE 2d 403) and there a division between erotica and obscenity was made -- not all items with erotic content were automatically obscene. Further, the 1965 "John Cleland's 'Memoirs'" case added a further qualification for the proving of "obscenity" -- the work in question had to inspire or exhibit "prurient" (that is, "shameful or morbid") interest. In September 2005 an FBI "Anti-Porn Squad" was formed, which has initially targeted for prosecution websites such as Red Rose Stories (www.red-rose-stories.com, now defunct), one of many sites providing text-only fantasy stories. Other former BDSM lifestyle websites such as BeautyBound.com, run by Midori, a prominent BDSM teacher and author on Japanese bondage, have closed themselves down despite not being targeted, due to these risks and legislative burdens. [3] [edit] Past standardsThese standards were once used to determine exactly what was obscene. All have been invalidated, overturned, or superseded by the Miller Test.
Under FCC rules and federal law, radio stations and over-the-air television channels cannot air obscene material at any time and cannot air indecent material between 6 a.m. and 10 p.m.: language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities. Many historically important works have been described as obscene or prosecuted under obscenity laws, including the works of Charles Baudelaire, Lenny Bruce, William S. Burroughs, Allen Ginsberg, James Joyce, D. H. Lawrence, Henry Miller, Samuel Beckett, and the Marquis de Sade. [edit] U.S. activity and court cases dealing with obscenity
[edit] CriticismObscenity law has been criticized in the following areas: [14].
It should be noted that in light of the recent decision of the en banc decision of the Third Circuit Court of Appeals, as brought by Judge Lancaster in the original US vs. Extreme Associates case, only the US Supreme Court is allowed to revise its earlier decision that established the Miller decision. The US Supreme Court refused to hear, effectively rejecting, such modification in August 2006 when the same en banc decision by the Third Circuit was sent to the US Supreme Court for review.[13] Thus the opened ended conflicting notes above remain in effect for obscenity prosecutions. [edit] United Kingdom obscenity lawThe Obscene Publications Acts determine the criteria for what material is allowed to be publicly accessed and distributed within the member countries of the United Kingdom. The Criminal Justice and Immigration Act 2008 prohibits the possession of "extreme pornography." [edit] U.K. activity and court cases dealing with obscenityIn 2008, the UK prosecuted a man for writing a fictional sex story.[15][16] In 2009, the man was found not guilty.[17] [edit] Canada obscenity lawSection 163 of the Canadian Criminal Code provides the country's legal definition of "obscenity". Officially termed as "Offences Tending to Corrupt Morals", [14] the Canadian prohibited class of articles which are to be legally included as "obscene things" is very broad, including text only written material, pictures, models (including statues), records or "any other thing whatsoever" -- that according to Section 163(8) -- has "a dominant characteristic of the publication is the undue exploitation of sex, or the combination of sex and at least one of crime, horror, cruelty or violence" is deemed to be "obscene" under the current law. The current law states 163. (1) Every one commits an offense who
"Crime comics" are stated to be books that glorify criminal activities and have at least one depiction of such criminal actions of the book's text. The Canadian Border Services Agency seizes items it labels obscene. [edit] Canadian activity and court cases dealing with obscenityIn 1993, Canadian police arrested the 19-year-old writer of a fictional sex story "The Forestwood Kids"[18] however the case was dismissed in 1995.[19] In February 2009, citing its Policy On The Classification Of Obscene Material, the CBSA banned two Lucas Entertainment films because they show the "ingestion of someone else's urine... with a sexual purpose".[20][21] [edit] Other countriesVarious countries have different standings on the types of materials that they as legal bodies permit their citizens to have access to and disseminate among their locale populations. The set of these countries permissible content vary widely accordingly with some having extreme punishment up to and including execution for members who violate their restrictions, as in the case of Iran where the current laws against pornography now include death sentences for those convicted of producing pornography. [15] In India the Obscenity law is the same as had been framed by the British Government. Charges of obscenity have been levelled against various writers and poets till date; the law has not yet been revised. The famous trials relate to the Hungryalists who were arrested and prosecuted in 1960s. [edit] See also
[edit] Notes
[edit] References
[edit] External links
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