Evolution of Obscenity
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.
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;
(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
(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.