Term Paper: What Constitutes Obscenity

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Corrections/Police - Miscellaneous: "What Constitutes Obscenity?"

What Constitutes Obscenity?

Americans despise obscenity by and large, but they have always had a problem with identifying just what was obscene and why. Indeed, the legal history historically failed to even provide a working definition for obscenity until constitutionally recent times (Saunders, 1996). Nevertheless, just about everyone, it would seem, is able to recognize what they regard as obscene "when they see it," but in many cases it may be difficult or impossible to discern just what it is about a given work that crosses the obscenity threshold without some descriptive legal rather than purely aesthetic guidelines in mind. To this end, this paper provides an overview what the courts have considered obscene in the past and how these views have changed over the years. In addition, an analysis of the relevant and peer-reviewed literature will be used to show that while definitions may vary, many people consider something obscene when it forced upon them rather than when they seek out such materials or works for themselves, for prurient or other reasons. A summary of the research and important findings will be provided in the conclusion.

Review and Discussion.

Background and Overview.

According to Rigney (2003), "Obscenity falls into the category of completely unprotected speech.... In Roth v. United States [1957], the Supreme Court held explicitly that obscene speech was not protected by the First Amendment. The Court went on to explain, however, that 'sex and obscenity are not synonymous.' Taking a cue from Webster's Dictionary, the Roth Court suggested that obscenity 'deals with sex in a manner appealing to prurient interest'" (p. 297). The Roth Court also held that these guidelines would be based on how an "average person" instead of "the most impressionable person" would react to them, which was an important change from the previous and stricter legal definition provided in Regina v. Hicklin (Rigney, 2003, p. 297). In the case of Regina v. Hicklin, (1868), the Chief Justice promulgated what became known as the "Hicklin test" for obscenity. The central question of the Hicklin test was whether there was the "tendency of the matter... To deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall" (cited in Bartee, 1992 at p. 65). The Hicklin court failed to specify just who these people might be (Bartee, 1992), but the Roth standard addressed this issue to some extent. In this regard, Rigney (2003) reports that, "The Roth test for obscenity can be summarized as 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole, appeals to the prurient interest'" (p. 297).

According to Saunders, the foregoing trends in obscenity law up until the Supreme Court's recognition of the obscenity exception in the Roth case are important considerations today because the ordinary language meaning of the word "obscene" is not necessarily the controlling factor in providing the obscenity exception. For instance, Saunders (1996) points out that, "If the law has historically recognized an exception for materials said in the various eras to be obscene, as the Roth Court says it has, it is the legal definition of 'obscene' in those eras that is important. The ordinary language definition becomes important to the degree that the law fails to establish a different legal definition" (p. 6). According to Black's Law Dictionary (1990), the current "legal definition" of obscene is as follows:

Objectionable or offensive to accepted standards of decency. Basic guidelines for determining whether a work which depicts or describes sexual conduct is obscene is whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (p. 1076)

In addition, Black's notes that communities in the U.S. may elect to limit the definition or expand it, depending on their preferences (1990). In reality, though, such a definition has been increasingly difficult to formulate and is becoming virtually impossible to keep relevant without ongoing amendment based on constantly changing views of the larger society in which the issue is considered, and these issues are discussed further below.

Arbiters of Obscenity and Their Implications for Artists and the Media.

According to Hixson (1996), "Pornography -- called 'obscenity' when proscribed by law -- is largely defined by efforts to regulate it. But the question of Pornography -- called the 'intractable obscenity problem' by one U.S. Supreme Court justice -- is more than a question of definition or a problem for the courts. It is also, and perhaps more so, an issue for society at large" (p. 3). The Congressional definition of obscenity mirrors the definition provided by Black's and specifies.".. that the realm of obscenity does not include those objects and practices that have literary, artistic, political or scientific value" (Kidd, 2003, p. 7), and herein lies the essence of the problem facing those who would seek to know what is obscene and what is not.

An old adage advises that, "One man's trash is another man's treasure," and there is plenty of room in these definitions of obscenity to allow for the creation of almost any work of art or literature, no matter how vile, provided these legal requirements are satisfied. For example, it would be profoundly obscene for young schoolchildren to read or view so-called "snuff" productions that involve actual killings, but it would be perfectly acceptable for sociologists to conduct scientific investigations of these phenomena, interview those who commit such horrendous acts and to write up their findings in scholarly journals for anyone to read. Likewise, it is conceivable that there would be some scientific, literary or artistic merit identified in a given work by some observers based on their background, education and professional training that might not be discernible by the "average person" as set forth in Roth. Therefore, there is an essential and sometimes-overlooked "eye of the beholder" test involved that frequently transcends the legal definitions of obscenity that makes any absolute, across-the-board designation of obscenity problematic and difficult to enforce in the courts. Furthermore, it is clear from Kidd's (2003) essay, "Mapplethorpe and the New Obscenity," that there are also other mediators and factors to be considered in determining what is obscene in a given geographic venue besides just what the courts or Congress may say about the matter. For instance, the author reports that, "Robert Mapplethorpe is now widely known as one of a pair of artists, along with Andres Serrano, who catapulted the National Endowment for the Arts (NEA) into the crisis that is widely referred to as the 'culture wars of the arts.' As a result, Mapplethorpe is now generally associated with a particular kind of obscene art" (Kidd, 2003, p. 6).

According to Kidd, there was essentially no due process provided the artist in this unfair association between him and denied Mapplethorpe his "day in court" in which he could voice his rebuttals; rather, the case was an example of an arbitrary - and some say capricious - decision by the Institute for Contemporary Art as to what they regarded as obscene, and they got paid handsomely for the privilege of designating Mapplethorpe's work as being obscene: "The key decisions that implicated the NEA in the funding of 'obscenity' were made not by the artist, and not even by the NEA, but by mediating arts organizations -- specifically, the Institute for Contemporary Art in Philadelphia, that used a $30,000 NEA grant to mount a retrospective of Mapplethorpe's photography" (Kidd, 2003, p. 6). By any measure, Mapplethorpe's works could be viewed as being inappropriate for certain age groups or others, depending on the unique individual factors involved, but the same issues that affected the Mapplethorpe outcome are at play in virtually every instance of the obscenity determination.

Like the controversial family pictures taken by Sally Mann, Mapplethorpe's works could be considered by some observers - rather than the "average person" -- to have literary, artistic, scientific or in this case, political value depending on their unique personal perspectives that would not even involve prurient interest. The introduction of the Internet has made any attempt to regulate the introduction of obscene materials impossible if someone wants to find them, and the nation's schools and public libraries are scrambling to identify better ways to provide access to the relevant academic resources while avoiding inadvertent visits to more questionable Web sites in the process. Furthermore, the same factors that have made a determination of what is obscene and what is not difficult in the past are simply exacerbated in this cyber-environment, and the stop-gap measures introduced to date have, not surprisingly, failed to please everyone. According to Platt (2001), "Legislation like the Communications Decency Act is just a repeat performance of… [END OF PREVIEW]

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