The Attorney General's Commission on Pornography defined pornography as "sexually explicit material designed primarily for arousal." This broad term encompasses magazines, videos, websites and photos and can be divided into two legal categories: indecent (legal) and obscene (illegal) material. According to some estimates, the industry generates $10-14 billion a year in the United States. 1
What is Legal?
Pornography appears to be everywhere, giving the illusion that all pornography is legal, apart from sexual abuse of children, violent torture or sex with animals. This myth is perpetuated by pornographers because it allows them to conduct business with little threat of legal action. The truth is that much of the pornographic material commonly sold and distributed in the United States today may be in violation of federal and local obscenity statutes.
Federal law prohibits the sale, distribution or dissemination of obscene materials through the mail, over the broadcast airwaves, on cable or satellite TV, on the Internet, over the telephone or by any other means that cross state lines. Most states also have specific laws banning the sale or distribution of obscene pornography within state borders. The only protection for obscene material recognized by the U.S. Supreme Court is personal possession in the home (Stanley v. Georgia). Learn more about federal and state obscenity here.
How to Determine if Material is Obscene
The Supreme Court affirmed in Miller v. California that obscenity was not protected speech. Further, the court ruled that each community is responsible for setting its own standards about what is considered to be obscene material. If pornographic material is prosecuted and brought to trial, a jury can deem it obscene based on:
- whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest;
- whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
- whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Further Guidance from the Court
The court spelled out a few clear examples of what it thought could be considered obscene:
- Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated
- Patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals
These examples provide greater clarity about the potential illegality of mainstream pornography. Clearly much of what is commonly sold in sex shops or viewed online fits within these parameters. Obscene pornography would not flourish if federal and state laws were consistently and vigorously enforced.
Importance of Consistent Law Enforcement
Too often, people feel overwhelmed by the pornographic sexuality pervading society and believe nothing can be done about it. On the contrary, if more people acted on their convictions, voiced their concerns publicly and demanded change, they would find a significan shift in public decency.
One of the most effective but least used tools to combat illegal pornography is enforcing existing laws. If obscenity cases aren't brought to trial, a community has no opportunity to exercise its constitutional right to determine its own standards. Moreover, the absence of effective enforcement favors criminals and lowers community standards because material is presumed to be legal unless proven otherwise in a court of law.
Setting high community standards requires 1) effective elected officials, 2) consistent law enforcement and 3) active and concerned citizens. Chief among these are active, informed and vigilant citizens. Without a community working to inform public officials about the harms of obscenity and positively encouraging investigations of suspected obscenity crimes, little will be done.
Copyright © 2011, 2008 Focus on the Family.