Withstanding the test of time, obscenity has never enjoyed
Constitutional protection. No holds barred, this stuff is illegal. This
is stuff simply beyond the pale of anything that the First Amendment was designed to protect.
this might make some uneasy. How can one be assured that one's art or
literature or informational website will not be judged obscene? What is
obscene? The Supreme Court set forth how to determine this in something known as the Miller test.
The test for obscenity is
whether the average person, applying contemporary community standards
would find that the work, taken as a whole, appeals to the prurient
(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.
is an extreme test. The key in many ways is the final element. The work
taken as a whole must lack serious literary, artistic, political or
scientific value. Thus a text book on sexual health would immediately
fail this test. It is not obscene; it has scientific value. Likewise
Shakespeare would fail the test; it has literary value. Federal courts
have found the phrase, "Fuck the Draft" written on the back of a denim
jacket worn inside of a court house during the Vietnam war was not
obscene; this was a political statement.[Cohen]
Further, one section of a work taken out of context does not make the
work obscene. One could not take one section out of the Hindu Kamasutra
and label it obscene; the work must be viewed as a whole. The courts
have made clear that when they are talking obscenity, they are talking
smut for smut sake.
Obscenity is illegal under 18 U.S.C. §§ 1460-1466. It also remains illegal under the CDA. 47 U.S.C. § 223(a) & (b).