Obsenity And The Law Essay, Research Paper

The First Amendment protects our freedom of speech, however there are a few exceptions. Obscenity is one of these exceptions and is a form of unprotected speech. The Supreme Court has repeatedly held the view that obscenity is not a First Amendment right, however the definition of obscenity is vague and has caused many debates. To determine if a crime has been committed the law needs to be clear on the difference between which is right and wrong.

The law governing obscenity developed at the state and local level and has been the subject of a variety of judicial tests. One of the earliest tests was the Hicklin rule, which resulted from a case in England in 1868. An important aspect of the Hicklin rule was that a work could be obscene if an isolated passage could tend to corrupt any mind that was open to immoral influences. Books that were not suitable for children were considered obscene and were banned.

In 1957 the Supreme Court rejected the Hicklin rule and provided a new basis for judging obscenity, with the decision of Roth v United States. The Roth rule stated “Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” They claimed that obscenity was not a constitutionally protected form of speech due to its utter lack of redeeming social importance. The Court openly admitted that it had major difficulties in defining what was obscene, and suffered from an inability to get a handle on it. While confessing that he could not define obscenity Justice Potter Stewart stated I know it when I see it .

The Roth standard proved difficult to understand and implement with the exception of hard-core pornography and led to political controversy and rapid expansion of the pornographic industry. The United States needed to find a more clear definition of obscenity. The problem was studied and in 1973 under pressure to overturn the Roth decision the Supreme Court created a new basis known as the Miller test for determining what is considered obscene with their decision in Miller v California.

In Miller v California the Supreme Court established three tests to determine if material is obscene, and therefore unprotected by the First Amendment. A judge a jury must use these standards to determine if material is obscene:

1. If the average person, applying community standards, would find that a work, taken as a whole, appeals to a prurient interest

2. Whether the work depicts in a patently offensive way sexual conduct specifically defined as obscene in the law

3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value 1

The Miller decision did not make it easier for law enforcement to get a conviction. To be determined obscene material must satisfy all three of these tests. With these three tests the court confirmed again that only hard-core pornography was not protected by the first amendment.