Obscenity refers to a narrow category of pornography that violates the norms of the contemporary community and has no serious literary, artistic, political or scientific value. At least for adults, most pornographic material — material of a sexual nature that excites many readers and viewers — enjoys constitutional protection. However, two types of pornography are not protected by the First Amendment: obscenity and child pornography. Sometimes the material is classified as “harmful to minors” (or obscene to minors), although adults may have access to the same material. The Supreme Court has repeatedly considered problematic elements of Miller`s obscenity test. To date, however, no standard has replaced them. Obscenity remains one of the most controversial and confusing areas of the First Amendment Act, and Supreme Court justices have fought hard over the years to define it. Justice Potter Stewart was able to appear in Jacobellis v. Ohio (1964), but he exclaimed, “I know when I see it.” Stewart noted that the court was “faced with the task of defining what might be indefinable.” In a subsequent case, Interstate Circuit, Inc. v. Dallas (1968), Justice John Marshall Harlan II called this area “a problem of intractable obscenity.” Federal law strictly prohibits the dissemination of obscene content to minors. Any transmission or attempted transmission of such material to minors under the age of 16, including over the Internet, is punishable under federal law. It is also illegal to use domain names of deceptive websites to trick a minor into viewing harmful or obscene material.
For example, using a cartoon character or children`s television show in the area of a website that contains harmful or obscene material may be punishable under federal law. In addition, visual depictions such as drawings, caricatures, or paintings that appear to depict minors engaged in sexual activity and are obscene are also illegal under federal law. It is important to note that the standard for what is harmful to minors may be different from the standard for adults, and offenders convicted of crimes of obscenity against minors must be punished more severely than if the crimes affect only adults (for more information, see Citizen`s Guide to the Federal Obscenity Act). The ACLU filed a new lawsuit, which became Ashcroft v. Civil Liberties Union (“ACLU II”). Ashcroft affirmed the constitutionality of COPPA, considering its use of “community standards” to identify “material harmful to minors” an acceptable practice under the First Amendment. However, the court also requested that COPPA be ordered and that the case be referred to the Third Circuit, where the court found that COPPA created a ban on adult content that was too broad, intrusive and restrictive in its efforts to protect children from adult speech. The details of the case were finally clarified in January 2009, when the Supreme Court granted certiorari to ACLU v. Mukasey, a case that could have extended the obscenity law beyond the parameters of the Miller test.
Federal laws explicitly prohibit obscenities involving minors, and convicted criminals are generally subject to harsher legal penalties than if the offense involves only adults. For lawyers who practice blasphemy law, practice involves fact-based research into community standards. Even though the classification of a material as obscene depends on modern community standards, individuals within a community may have different opinions about what the modern community standard is. Prosecutors have discretion in their prosecutorial decisions. They must exercise their discretion when deciding whether or not to lay obscenity charges. At the same time, defense attorneys must aggressively defend their clients by arguing before the jury that the material in question does not violate the community`s standards of decency. Indeed, presenting evidence of community standards of decency to the jury can be an effective defense strategy. Modern obscenity emerged as a direct response to social and technological changes – particularly the development of the printing press in the 15th century – which allowed for the wide and easy distribution of material then considered sexually explicit. In the 17th century, these books and prints were widely used throughout Europe; Governments and church authorities responded by arresting and prosecuting publishers and distributors.
A similar sequence of events occurred in Japan, where the development of color wood printing soon led to a considerable industry for erotic images. In 1722, the Japanese government introduced the first of several edicts against unlicensed material, whether erotic or political. The Supreme Court was confronted with the issue of obscenity in Roth v. United States (1957), a case challenging the constitutionality of a federal law prohibiting the shipment of “obscene, obscene, lascivious, or dirty” material. or any other publication of an indecent nature”. The court said in a statement from Justice William J. Brennan Jr. that “obscenity is not in the realm of speech or the press protected by the Constitution.” The Supreme Court has resisted efforts to extend the justification for obscenity of hard sex material to hardcore violence.