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Obscenity

Under U.S. law, government officials can prohibit the sale and transportation of material that is determined to be obscene.  Whether material is obscene is something that must be determined by a judge, using the three-part test that the Supreme Court developed in the case Miller v. California.  Under the Miller test, the judge must consider:

  • 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 the applicable state law, and

  • whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

If a work is determined to satisfy all three of these requirements and is declared obscene, then state and federal laws that regulate the distribution of obscene materials will apply.  While possession of obscene material is not itself illegal, sending obscene material through the mail, by interstate commerce, or over the Internet, importing it into the U.S., or producing it with the intent to distribute it is illegal.  Each of these offenses can be punished by a fine and/or five or more years in prison.  A person is assumed to have the intent to distribute obscene materials if they transport two or more copies of something that’s obscene, or if they transport a total of five obscene items, though he or she can argue against this assumption at trial. 

In addition to fines and or jail time, a person who’s convicted of an obscenity crime may also have to forfeit any copies of the obscene material, as well as any profits or property acquired with profits from the material, and any property used to create or distribute the material.  There are also obscenity crimes that involve the transmission of obscene material over the radio or television.  People convicted of these crimes can face a large fine and up to two years in jail.

Child pornography is also considered non-speech and is not protected by the First Amendment.  Unlike obscene materials, even possession of child pornography is a crime.  Those convicted of distributing child pornography or creating it with the intent to distribute it are subject to fines and between five and twenty years in prison.  Those convicted of possession of child pornography may be fined and sentenced to up to 10 years in prison.  If they have already been convicted of sex crimes against children, the possible prison terms increase to fifteen to forty years for distribution and tent o twenty years for possession.

In addition to the federal laws discussed above, most states have their own obscenity and child pornography laws. Issue relating to obscenity, including discussion of cases, can be found in our Sexual Content section.