Media Law: Obsenity

Romper bomper stomper boo tell me tell me tell me do magic mirror tell me today which media law subject should my paper cover today? Why don’t we talk about f#@*%n obscenity? That sounds good to me. It also sounds like the magic mirror needs its mouth washed out with soap, this being just my opinion. Surprisingly the magic mirror has only displayed only one forum of what is considered obscenity. Obscene language is certainly one issue I feel I am surrounded by everyday, both as a user and a receiver, but there are also images and gestures which are considered obscene. Now an obvious image of obscenity is pornography, but surprisingly even the masters of art have been and some still accuse them of creating obscene images.

Now I am not a prude by any stretch of the imagination, I have been known to use language that would make my mother slap the back of my head. I must say though that I use it in the confides of designated areas where it is more readily accepted. As we tell children as they grow up,” you have an indoor voice and an outdoor voice.” I would say, as we create our personality we have a selection of words and images we allow at different places and times. One of these selections of words and images contain obscene words, images and gestures we either use or choose to ignore or avoid depending on what meaning we have adopted for these things into our own lives.

As we look at the world from a myopic viewpoint you would think obscene images, ideas, paintings, writings, etc… would easily stick out. However when you use a broader view of the world you realize that there are billions of people on the face of the earth, and each and every one of them has their own view and opinion and no two are exactly the same. This being the case what one may find obscene and improper, another may find acceptable, and let us not forget about all those who dwell in the infinite shades of gray on any given subject.

Webster’s defines obscenity this way:

ob•scen•i•ty ( b-s n -t , b-), n. pl. ob•scen•i•ties

1. The state or quality of being obscene.

2. Indecency, lewdness, or offensiveness in behavior, expression, or appearance.

3. Something, such as a word, act, or expression, that is indecent or lewd.

4. Something that is offensive or repulsive to the senses: “What had once been a gentle hill covered with lush grass turned into a brown obscenity of bare earth and smoke” (Tom Clancy).

A more “Legal” definition of obscenity is a follows:

OBSCENE, OBSCENITY - Such indecency as is calculated to promote the violation of the law and the general corruption of morals.

History shows that in the 1957 Supreme Court decision ROTH v. the UNITED STATES “Obscenity is not within the area of constitutionally protected freedom of speech or press - either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States.”

Now we have a precedent. No one can just go out and mail or distribute obscene material. But how are we to notice the beast when we have no rule to fully judge it by. Just because I call something obscene, does not make it so. Would there not be confusion, because ROTH v. the UNITED STATES only really dealt with the protection from selling/distributing material of an obscene material. There needed to be a litmus test to say what is or is not obscene, but with in reason of course. We needed a set of rules.

Well lo and behold wouldn’t you know there would be another case that would eventually come to the forefront to help meet those needs. In the 1973 MILER v. CALIFORNIA we see that test we need in order to be able to test we need for more redily defining what obscenity is. For something to be "obscene" it must be shown that the average person, applying a set of community standards and viewing the material as a whole, would find (1) that the work is created to arouse sexual thoughts and intent; (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value.

The first test of whether the purpose of the material is an appeal to the interest of the "average person of the community as a whole" is a “judgment” which must be made according to the standards as would be applied by an “average person” with an “average and normal attitude toward, and interest in, sex”. Community standards are set by what is accepted in the community as a whole. This is to say, obscenity is not a matter of individual taste or how the material affects an individual juror. It is instead a test is how