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Obscenity and Pornography

Artful depictions of human sexuality highlight the tensions between lust and love, desire and commitment, fantasy and reality. Vulgar depictions can degrade sexuality and dehumanize the participants, replacing stories about love with stories about deviance, abuse, molestation, and pedophilia. State and federal laws attempt to enforce societal norms by encouraging acceptable depictions of human sexuality and discouraging unacceptable depictions. Libidinous books such as Lady Chatterley’s Lover and pornographic movies such as Deep Throat have rankled communities struggling to determine whether such materials should be censored as immoral or protected as works of art.

The Supreme Court has always had difficulty distinguishing obscene material, which is not protected by the First Amendment, from material that is merely salacious or titillating, which is protected. Justice Potter Stewart once admitted that he could not define obscenity, but he quipped, “I know it when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676,1683, 12 L. Ed. 2d 793 (1964). Nonetheless, the Supreme Court has articulated a three-part test to determine when sexually oriented material is obscene. Material will not be declared obscene unless (1) the average person, applying contemporary community standards, would find that the material’s predominant theme appeals to a “prurient” interest; (2) the material depicts or describes sexual activity in a “patently offensive” manner; and (3) the material, when taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S.15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).

Although the Supreme Court has failed to clearly define words and phrases such as “prurient,” “patently offensive,” and “serious artistic value,” literary works that deal with sexually related material are protected by the First Amendment, as are magazines like Playboy and Penthouse. More difficult questions are presented in the area of adult cinema. Courts generally distinguish hard-core pornography that graphically depicts copulation and oral sex from soft-core pornography that displays nudity and human sexuality short of these “ultimate sex acts.” In close cases falling somewhere in the grey areas of pornography, outcomes may turn on the “community standards” applied by the jury in a particular locale. Thus, pornography that could be prohibited as obscene in a small rural community may receive First Amendment protection in Times Square.

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