Criminal law (2022): Sexual offenses: Obscenity

An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. The word can be used to indicate strong moral repugnance and outrage, in expressions such as "obscene profits" and "the obscenity of war". As a legal term, it usually refers to graphic depictions of people engaged in sexual and excretory activity, and related utterances of profane speech.

United States obscenity law.

In the United States, issues of obscenity raise issues of limitations on the freedom of speech and of the press, which are otherwise protected by the First Amendment to the Constitution of the United States.

Federal obscenity law in the U.S. is unusual in that there is no uniform national standard. Former Justice Potter Stewart of the Supreme Court of the United States, in attempting to classify what material constituted exactly "what is obscene," famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced ... but I know it when I see it...." In the United States, the 1973 ruling of the Supreme Court of the United States in Miller v California established a three-tiered test to determine what was obscene—and thus not protected, versus what was merely erotic and thus protected by the First Amendment. Delivering the opinion of the court, Chief Justice Warren Burger wrote:

The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Non image-based obscenity cases in the U.S.

While most recent (2016) obscenity cases in the United States have revolved around images and films, the first obscenity cases dealt with textual works.

The classification of "obscene" and thus illegal for production and distribution has been judged on printed text-only stories starting with Dunlop v U.S. (1897), which upheld a conviction for mailing and delivery of a newspaper called the Chicago Dispatch, containing "obscene, lewd, lascivious, and indecent materials", which was later upheld in several cases. One of these was "A Book Named John Cleland's Memoirs of a Woman of Pleasure" v Attorney General of Com. of Massachusetts, "(1966)" wherein the book "Fanny Hill", written by John Cleland in 1760, was judged to be obscene in a proceeding that put the book itself on trial rather than its publisher. Another was Kaplan v California, (1973) whereby the court most famously determined that "Obscene material in book form is not entitled to any First Amendment protection merely because it has no pictorial content."

In 2005, the U.S. Department of Justice formed the Obscenity Prosecution Task Force in a push to prosecute obscenity cases. Red Rose Stories, a site dedicated to text-only fantasy stories, became one of many sites targeted by the FBI for shutdown. The government alleged that Red Rose Stories contained depictions of child rape. The publisher pleaded guilty. Extreme pornographer Max Hardcore served 30 months of a 46-month prison sentence for obscenity. Many U.S. states have had bans on the sale of sex toys, regulating them as obscene devices. Some states have seen their sex toy bans ruled unconstitutional in the courts. That ruling leaves only Mississippi, Alabama, and Virginia with current bans on the sale of obscene devices.

Literature (non-fiction) communicating contraceptive information was prohibited by several states. The last such prohibition, in Connecticut, was overturned judicially in 1965.