Obscenity is a unique legal phenomenon for three reasons. First, the defendant does not have to know the exact content of the material at issue; he or she only has to know the general nature of the material in order to be convicted. Second, the defendant almost necessarily has to employ social scientists to conduct a study indicating that the material does not offend the community’s standards. Third, because the crime of obscenity depends on the community’s sentiment, the defendant does not know if he or she has committed a crime until the verdict is returned. Thus, someone can own obscene material and not know that the material is illegal until a jury decides whether it offends community standards. Psychological research is used to measure community standards.
The legal definition and method of determining obscenity were established in Miller v. California (1973). Obscenity depends primarily on three factors. A material is obscene if an average person applying community standards would find that it (a) appeals to a prurient interest (i.e., an unhealthy, morbid, or degrading interest in sex), (b) depicts sexual conduct specifically defined by the state as patently offensive, and (c) lacks any artistic, literary, political, or scientific value.
In Smith v. United States (1977), the court clarified that “prurient interest” and “patently offensive” were to be determined by an average person applying contemporary community standards. Additionally, in Pinkus v. United States (1978), the court found that children are not part of the community included in the community standards criteria. However, these definitions failed to address what constitutes a community.
States have much flexibility in determining what behaviors are considered patently offensive sexual material. The Miller ruling and state court rulings have provided some examples. For instance, the Illinois state court in Ward v. Illinois (1977) named bestiality and sadomasochism as examples of patently offensive sexual conduct. Currently, seven states do not have obscenity laws. Of those that do, most states include the Miller definition as well as provide examples of patently offensive materials. Other than these definitions, stores selling such material and individuals have no explicit guidance on whether a material is obscene or not. Because the definition of obscenity is determined by community sentiment, it is difficult to know whether a material is obscene until a jury makes that determination. Researchers can conduct studies and testify about the community’s standards.
Obscenity, Community Standards, and Expert Testimony
Following Miller (1973), courts began to address whether parties had either the right or the requirement to produce scientific data. Kaplan v. California (1973) determined that defendants have the right to introduce expert testimony on the issue of community standards. In Commonwealth v. Trainor (1978), the judge stated that public opinion polls are uniquely suited to inform community standards debates. People v. Nelson (1980) generally held that experts are needed because otherwise jurors would rely on their own standards instead of the community’s standards as the law requires. However, Hamling v. United States (1974) found that expert testimony was not needed if the jury could view the material themselves. More important, the court determined that the defendant does not have the right to produce a poll. Generally, the current trend is to allow polls as long as they are well conducted and not biased.
Psychological research has investigated various aspects of community standards. Research has determined that community standards may vary over time; they may be restrictive at one time while lenient at another. Additionally, research has discovered that urban communities often have less conservative views of obscenity than less populated areas.
Males, younger individuals, and Whites are less likely to consider a material obscene than their counterparts. Furthermore, research has determined that viewing obscene materials does not change an individual’s opinion of whether it is obscene or not, but it may make individuals less likely to consider that the material appeals to a prurient interest in sex.
Finally, individuals’ perceptions of obscenity do not match their perceptions of the community’s standards of obscenity. That is, individuals indicate that their personal views are more lenient than those of the community, even though they are part of the community. This may be problematic in court if individuals believe that their views do not match their community’s view; they may determine that a material is obscene by community standards when they personally do not believe it is. Jury members are supposed to overlook their own standards and apply community standards in these cases. Yet if they do not have information about community standards, they may be inclined to believe that the community is much more restrictive than it truly is. As such, expert testimony from researchers who have polled the community can provide jurors with insight into what the community truly believes to be obscene.
Obscenity and the Internet
The most current challenge to the obscenity laws concerns sexual material posted on the Internet, which did not exist when the obscenity definition was established in 1973. Jurisdictional issues become problematic when obscenity cases involve the Internet. Although the material may not be viewed as obscene in the community of the individual who placed it on the Web site, it may be obscene in other communities where it is viewed. Courts have determined that the individual responsible for the obscene material will not be held to the standards of the town where he or she posted the Web site (Voyeur Dorm, L.C. v. City of Tampa, 2001). Instead, he will be held to the standards of the community where the material is delivered (Miller v. California, 1973). This decision was furthered by Ashcroft v. ACLU (2002), which established that Internet material can be judged by the standard of the community that is most likely to be offended by it. As these examples demonstrate, obscenity laws pose difficulties for both lawmakers and psychologists.
- Ashcroft v. ACLU, 535 U.S. 564 (2002).
- Commonwealth v. Trainor, 374 Mass. 796, 801-802 (1978).
- Hamling v. United States, 418 U.S. 87 (1974).
- Kaplan v. California, 413 U.S. 115 (1973).
- Miller v. California, 93 S. Ct. 2607 (1973).
- People v. Nelson, 88 Ill. App.3d 196 (1980).
- Pinkus v. United States, 436 U.S. 293 (1978).
- Reese, D. A., & Kyle, D. A. (2002). Obscenity and pornography. Journal of Gender and the Law, 4(1), 137-168.
- Scott, J. E. (1991). What is obscene? Social science and the contemporary community standard test of obscenity. International Journal of Law and Psychiatry, 14(1-2), 29-45.
- Smith v. United States, 431 U.S. 291 (1977).
- Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232 (11th Cir. 2001).
- Ward v. Illinois, 431 U.S. 767 (1977).