OBSCENITY

Although the First Amendment to the U.S. Constitution guarantees freedom of expression, it does not extend to obscenity or to fighting words. To determine whether something is obscene, the courts use guidelines established by the U.S. Supreme Court: (i) whether the average person, applying contemporary community standards would find that the work depicting or describing sexual conduct when taken as a whole, appeals to the prurient interest; (ii) whether the work does so in a patently offensive way; and (iii) whether when taken as a whole, it lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, (1973)

California Penal Code §311 has a similar definition:

(a) "Obscene matter" means matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(1) If it appears from the nature of the matter or the circumstances of its dissemination, distribution, or exhibition that it is designed for clearly defined deviant sexual groups, the appeal of the matter shall be judged with reference to its intended recipient group.

(2) In prosecutions under this chapter, if circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that matter is being commercially exploited by the defendant for the sake of its prurient appeal, this evidence is probative with respect to the nature of the matter and may justify the conclusion that the matter lacks serious literary, artistic, political, or scientific value.

(3) In determining whether the matter taken as a whole lacks serious literary, artistic, political, or scientific value in description or representation of those matters, the fact that the defendant knew that the matter depicts persons under the age of 16 years engaged in sexual conduct, as defined in subdivision (c) of Section 311.4, is a factor that may be considered in making that determination.

(b) "Matter" means any book, magazine, newspaper, or other printed or written material, or any picture, drawing, photograph, motion picture, or other pictorial representation, or any statue or other figure, or any recording, transcription, or mechanical, chemical, or electrical reproduction, or any other article, equipment, machine, or material. "Matter" also means live or recorded telephone messages if transmitted, disseminated, or distributed as part of a commercial transaction.

Updated by ADAMS KESSLER 8/20/2008