The debate on obscenity has been a longstanding social, political, and legal controversy in the American society. There are numerous federal laws and court statutes which have been developed to define and control obscenity. One of these is the 1973 Miller test which has been accepted as a standard measure for determining whether materials are obscene in American courts (Pember & Calvert, 2004). Nevertheless, the Miller test receives many critics in its definition for the criteria for qualifying obscenity based on community standards.
On the other hand, the legislator has implemented some restrictive laws to regulate the expression of obscene or erotic material. Such regulations are based on time, manner, and place restrictions. This essay seeks to establish the history of regulation on obscenity, its legal definition, how legislators use time, manner, and place restrictions to regulate obscenity, and how current federal regulations serve to control obscenity. In particular, the author will describe and critique the Miller test on determining obscene or erotic material.
Miller test is the test used by the US Supreme Court in determining obscenity of speech or expression for cases falling outside the protection of the First Amendment to the US constitution. According to the US Supreme Court decision in the Miller v. California state, “a material is obscene if:
1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest; 2. The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law; and 3. The work in question lacks serious literary, artistic, political or scientific value” (Pember & Calvert, 2004). Interpretation of the provisions of the Miller test defines an average person as the person who tries the facts. This is in most cases the jury, though the trail judge can serve this role in absence of the jury (Pember & Calvert, 2004). In addition, the trier should have adequate knowledge of the standards acceptable to the residents of the local community to make the decision. The Supreme Court has limited the second provision of the Miller test to hard-core pornographic materials.
Nevertheless, governments and state supreme courts have the authority to specify materials to be categorized as offensive. The question of whether the material is of serious knowledgeable information value is left as a decision of the trial judge (Pember & Calvert, 2004). Community standards have been interpreted to means state standards in many courts (Cohen, 2003). This is due to the assertion that individual communities do not have the legal mandate to create laws regulating obscene or erotic materials.
Although this definition has been commonly appreciated as a reliable measure of obscenity, community standards are not an appropriate way to measure obscenity. The laws of a nation should be clear and highly responsive in dictating for order in the community. With this in mind, terming community standards as those of the local region communities negates the applicability of the laws in other communities. In other words, such a definition of community standards contradicts the equal opportunity clause of the civil rights bill in the constitution.
In addition, the war on obscenity cannot be effectively fought without having a unified law. According to available information, different states have different laws defining obscenity. On the other hand, Miller test is quite specific in dictating for consideration of the standards acceptable in the local community (Pember & Calvert, 2004). This has the implication that the trier of the facts should be well equipped with the underlying legal and cultural aspects of the local community. Indeed, this is a hindering factor to the provisions of cross-cultural and/or cross-state justice in the American society.
Therefore, the definition of community standards should be given a broader view to encompass national community values and expectations as the basis of conducting the Miller test. Time, manner, and place restrictions are common tools employed by legislators in regulating the expression of obscene or erotic materials in the American society (Parkinson, & Parkinson, 2006). Many states have implemented laws dictating for use of particular zones to access or express obscenity. However, these zoning laws vary from state to state.
As an example, the 1977 law in Seattle allows for the location of obscene material showing theaters within a small area in the downtown. On the contrary, Detroit passed as city law in 1972 that prohibits concentration of adult theaters within a close range (Parkinson, & Parkinson, 2006). According to this law, adult theaters should be spaced not closer than 1,000 feet from each other or from other related businesses. Timing as a stool for regulating expression of obscene and erotic materials by legislators entails provisions on the appropriate time such materials can be sold or expressed.
Expression of obscene materials is regarded as entertainment rather than an economic activity in the American community (Parkinson, & Parkinson, 2006). Due to this reason, existing regulations on theaters only allow such activities to be conducted during non-working hours; the night. On the other side, the US Supreme Court has given state government the authority to adopt variable obscenity statutes (Pember & Calvert, 2004). These statutes allows the governments to enact legislations that define legal obscene material that can be distributed and sold to adults only and those which can be accessed by juveniles.
There are numerous federal regulations to control obscenity. These include the 1996 Child Pornography Prevention Act which is an amendment of the original child pornography law (Pember & Calvert, 2004). This Act prohibits against any act, photo, videotape or film that depicts children engaged in sexually explicit activities. In its definition, the law prohibits even electronic generated obscene materials involving children. Child Internet Pornography Act on the other hand criminalizes websites engaged in expressing or promoting child pornography.
Organized crime groups have been blamed for the production and distribution of obscene materials in the nation. This prompted the formulation and enactment of the federal Racketeering Influence and Corrupt Organizations Act (Cohen, 2003). In addition to federal laws, the federal government employs postal and film censorship to control obscenity. The federal government has given the US Postal Service authority to mitigate the use of postal mails by distributors of obscene materials such as magazine sellers and sexually explicit book distributions (Cohen, 2003).
In addition, the law also allows postal patrons to contact the US Postal Services requiring for intervention against sending of such materials to them by the mailer. The establishment of the Motion Picture Association of America has played an important role in regulating the contents of films sold to the people (Pember & Calvert, 2004). The federal government has the authority to block the production of a film if such are found to contain obscene materials that are prohibited by the law.
In conclusion, the question of obscenity remains a controversy in the American community. This contention is mainly driven by lack of consensus on the legal, cultural, and academic definitions of obscenity. limiting community standards to the local community as is the case with Miller test contradicts the aspect of diversity and cross-state justice in the community. Thus, a more comprehensive method of qualifying obscenity should be sort to eliminate this controversy and promote equality of justice provision in the American society.