Evolution of Obscenity Definitions

Pre-Roth Definition: Regina v. Hicklin (1868)): "Whether the tendency of the matter charged as obscenity is "to deprave and corrupt those whose minds are open to such immoral influences" which could be judged "by the effect of isolated passages upon the most susceptible persons."

Roth Definition: "Whether to the average person, applying contemporary community standards, the dominant them of the material taken as a whole appeals to prurient interest."

Memoirs v. Massachusetts Definition (plurality opinion): Interpreting the Roth definition as elaborated in subsequent cases, a plurality of the Court held that to satisfy the definition of obscenity "three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."

Miller Definition: Material is obscene if : (1) "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;" (2) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;" and (3) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Meaning of Prurient Interest: Appeal to a “shameful or morbid” interest in sex and not appeal to “normal, healthy sexual desires.”

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985):

The Court of Appeals was aware that Roth had indicated in footnote 20 that material appealing to the prurient interest was "material having a tendency to excite lustful thoughts" but did not believe that Roth had intended to characterize as obscene material that provoked only normal, healthy sexual desires. We do not differ with that view. As already noted, material appealing to the "prurient interest" was itself the definition of obscenity announced in Roth; and we are quite sure that by using the words "lustful thoughts" in footnote 20, the Court was referring to sexual responses over and beyond those that would be characterized as normal. At the end of that footnote, the Roth opinion referred to the Model Penal Code definition of obscenity -- material whose predominate appeal is to "a shameful or morbid interest in nudity, sex, or excretion" and indicated that it perceived no significant difference between that definition and the meaning of obscenity developed in the case law. This effectively negated any inference that "lustful thoughts" as used earlier in the footnote was limited to or included normal sexual responses. It would require more than the possible ambiguity in footnote 20 to lead us to believe that the Court intended to characterize as obscene and exclude from the protection of the First Amendment any and all speech that aroused any sexual responses, whether normal or morbid.

Child Pornography (New York v. Ferber)
To be punishable as child pornography: (1) the material must visually depict sexual conduct by an actual minor child; and (2) the sexual conduct must be specifically defined by the applicable state or federal child pornography law.

Obscenity vs. Child Pornography

For material to be punishable as obscene under Miller v. California, the following standards must be satisfied:

(1) The average person, applying contemporary community standards must find that the work, taken as a whole, appeals to the prurient interest; and
(2) The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable state or federal obscenity law; and
(3) The work, taken as a whole, must lack serious literary, artistic, political or scientific value.

For material to be punishable as child pornography under New York v. Ferber, the following standards must be satisfied:

(1) The material must visually depict sexual conduct by a minor child;
(2) The sexual conduct must be specifically defined by the applicable state or federal child pornography law;
(3) The sexual conduct can include actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse and lewd exhibition of the genitals.

Virtual Child Pornography Under the Child Pornography Prevention Act of 1996

Under the Child Pornography Prevention Act of 1996, child pornography is defined as any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where -

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;
(C)such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.

Sexually explicit conduct means: actual or simulated - sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person.

It is an affirmative defense under the statute if the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct; each such person was an adult at the time the material was produced; and the defendant did not advertise, promote, present, describe, or distribute the material in such a manner as to convey the impression that it is or contains a visual depiction of a minor engaging in sexually explicit conduct.