In order to narrow down the focus of my research, this paper will briefly discuss what is considered obscene and the different ways in which obscenity will manifest itself. Obscenity law aims at punishment for thoughts provoked or preventing the formation of certain thoughts, typically, erotic ones in the minds of willing viewers but not for overt acts, nor for antisocial conduct.
Although the United States Constitution protects the freedom of speech, the First Amendment was not intended to protect every utterance. In addition, many United States Supreme Court cases have consistently held that there are narrow categories of speech that are not protected by the First Amendment. These include obscenity, child pornography, inciting to riot, libel, false advertising, perjury, contempt of court, harassment, threats, copyright infringement and invasion of privacy. Thus, obscenity is not protected speech but a crime.
Although the definition of obscenity is not sufficiently clear, the United States Supreme Court provided a workable attempt in defining what is obscene. In 1973, in the landmark case of Miller v. California the Court held that before any material can be determined obscene, a three-prong test must be met: 1) determine whether the average person, applying contemporary community standards, would find the work taken as a whole appealing to prurient interests; 2) whether the work describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Further, obscenity can manifest itself in different forms. It can manifest itself in conduct, pictorial representation of conduct, and in the written and oral description of conduct, with each method of expression presenting its own problems. These manifestations are more commonly seen in the literary form; speech; motion picture; artistic work; and now internet pornography.
In determining whether a book is obscene, the Miller test tells us that the material must be considered as a whole and not judged by its vulgar and indecent paragraphs alone. In addition, a book may be indecent and obscene, no matter how humorous, or satirical. Furthermore, the possession in the home of obscene books, magazines, pamphlets and the like is constitutionally protected, except where such materials constitute child pornography.
In regards to speech, laws that prohibit indecent or obscene language will be struck down as unconstitutional where they do not articulate a boundary between those expressions that are protected by the Constitution, and those expressions which are not. Also, words which are more commonly known as “four letter words,” do not in and of themselves constitute obscenity.