Legal Definitions - Obscenity

Obscenity refers to a narrow category of speech or expression that is considered so offensive and lacking in redeeming social value that it receives no protection under the First Amendment of the U.S. Constitution. This means that material deemed obscene can be legally prohibited and restricted by the government.

To determine if something is obscene, courts in the United States apply a three-part test established by the Supreme Court in the case of Miller v. California. For material to be legally classified as obscene, it must meet all three of the following criteria:

• Appeals to Prurient Interest: An average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a shameful or morbid interest in sex. This isn't about normal, healthy sexual interest, but rather an unhealthy or excessive one.
• Patently Offensive: The work depicts or describes sexual conduct in a clearly offensive way, as specifically defined by the applicable state law. This part acknowledges that what is "offensive" can vary, but it must be clearly spelled out in the law.
• Lacks Serious Value: The work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a work has genuine merit in any of these areas, it is generally not considered obscene, even if it contains sexually explicit content.

It's important to note that "obscenity" is a very high bar and is distinct from "indecency." Indecent material, while it may be sexually explicit or offensive, is generally protected by the First Amendment and can only be restricted in terms of its time, place, or manner of display (e.g., adult content channels broadcasting only late at night). Obscenity, by contrast, can be outright banned.

Examples of Obscenity:

• Scenario 1: Graphic Film Distribution
  A small, independent film studio releases a movie that features extremely graphic, non-simulated sexual acts and violence, with no discernible plot, character development, or thematic message. It is distributed through mainstream video-on-demand platforms without strict age verification or content warnings, making it easily accessible to a general audience.

  How it illustrates obscenity:
  An average person in most communities would likely find the film, taken as a whole, appeals solely to a shameful or morbid interest in sex (prurient interest). The explicit depictions of sexual conduct would likely be considered patently offensive under most state laws (patently offensive). Furthermore, if the film, taken as a whole, lacks any serious literary, artistic, political, or scientific value beyond its graphic content, it could be deemed obscene (lacks serious value).

• Scenario 2: Explicit Magazine Sales
  A niche magazine is published that exclusively features highly graphic, non-consensual sexual scenarios depicted through illustrations and detailed text, presented without any narrative context, educational purpose, or artistic merit. It is sold openly on newsstands in convenience stores alongside general interest publications.

  How it illustrates obscenity:
  An average person, applying contemporary community standards, would likely find the magazine, taken as a whole, appeals to a morbid or shameful interest in sex and violence (prurient interest). The explicit and graphic depictions of non-consensual sexual conduct would be considered patently offensive under applicable state laws (patently offensive). If the magazine, taken as a whole, lacks serious literary, artistic, political, or scientific value, its content could be classified as obscene (lacks serious value).

• Scenario 3: Unfiltered Online Content
  An individual creates a website that hosts a vast collection of user-submitted videos and images depicting extreme, non-simulated sexual acts, often involving degradation or violence, with no age verification, content warnings, or any attempt to provide context, commentary, or artistic framing. The site is promoted through public forums and easily accessible to anyone with an internet connection.

  How it illustrates obscenity:
  The content on such a website, taken as a whole, would likely be found by an average person in the community to appeal to a prurient interest (prurient interest). The extreme and graphic nature of the sexual conduct would almost certainly be considered patently offensive under most state laws (patently offensive). If the website's content, taken as a whole, lacks any serious literary, artistic, political, or scientific value, it could be legally classified as obscene (lacks serious value), allowing for its restriction or prohibition.