Legal Definitions - Obscene

Obscene refers to material that depicts or describes sexual conduct in a way that is considered legally offensive and lacks any serious redeeming value. Unlike other forms of expression, material deemed obscene does not receive protection under the First Amendment of the U.S. Constitution.

To determine if something is obscene, courts typically apply a three-part test:

• Appeals to Prurient Interest: Would the average person in the community, applying current local standards, find that the material, when viewed as a whole, appeals to a shameful or morbid interest in sex?
• Patently Offensive: Does the material depict or describe sexual conduct in a clearly offensive way, as specifically defined by the relevant state law?
• Lacks Serious Value: Does the material, taken as a whole, lack any serious literary, artistic, political, or scientific value?

If all three conditions are met, the material can be legally classified as obscene.

Here are some examples illustrating how the concept of obscenity might apply:

• Example 1: Commercial Distribution of Explicit Content

  Imagine a website that exclusively sells videos depicting highly graphic sexual acts, designed solely for sexual arousal, with no narrative, artistic presentation, or educational context. A local prosecutor might argue this content is obscene.

  This illustrates obscenity because the videos would likely be found by the average person to appeal to a prurient interest in sex, depict sexual conduct in a patently offensive way as defined by state law, and clearly lack any serious literary, artistic, political, or scientific value when considered as a whole. Therefore, such material would not be protected by the First Amendment.

• Example 2: Art Exhibition vs. Exploitative Material

  Consider a fine art gallery displaying a photograph of a nude human figure as part of a collection exploring the human form and vulnerability. In contrast, imagine a mass-produced magazine featuring explicit, graphic images of sexual acts, distributed widely and marketed purely for sexual gratification.

  The art photograph, despite depicting nudity, would likely be protected because it possesses serious artistic value and is not intended to appeal solely to prurient interest in a patently offensive way. The magazine, however, if it meets all three criteria—appealing to prurient interest, being patently offensive under local standards, and lacking any serious literary, artistic, political, or scientific value—could be deemed obscene and therefore unprotected by the First Amendment.

• Example 3: Public Performance

  Suppose a group stages a live performance in a public park that involves simulated, graphic sexual acts, presented in a crude and provocative manner, with no discernible artistic or political message. This could be challenged as obscene.

  This scenario demonstrates obscenity if the performance is found by the average person in that community to appeal to a shameful interest in sex, depicts sexual conduct in a patently offensive way according to local statutes, and, when viewed as a whole, lacks any serious literary, artistic, political, or scientific value. If these conditions are met, the performance would not receive First Amendment protection.