When the new owners of a Newport Beach California restaurant received unsolicited brochures depicting pictures and drawings of men and woman engaging in a variety of sexual activities with genitals prominently displayed in the early 1970’s, they called the police; the purveyance of the material was orchestrated by a mass-mailer who labeled the same “Adult Material”; he was charged criminally and convicted.
The California Legislature had passed a statute outlawing “obscene” materials. At issue, was the definition of obscenity: Webster’s New World-College Dictionary (2009) defines “obscene” as: “offensive to one’s feelings, or to prevailing notions of modesty or decency; lewd- disgusting; repulsive. “Pornography” is derived from the Greek “pomographos” which meant “writing of harlots.” The defendant appealed his conviction and in the United States Supreme Court case, Miller v. California, the court set out to define what standards a state must use to identify obscene materials, which may be regulated without infringing on the First Amendment.
Conceding that they were dealing in an area where there are few eternal verities, the court concluded that obscene material is not protected by the First Amendment and then provided guidelines for the states to follow when enacting statutes that proscribe such content. They offered: (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. Subsequent decisions indicated that “prurience”, for Miller purposes, does not include an appeal to normal and healthy sexual desires, but only includes material whose predominant appeal is to a shameful or morbid interest in nudity. “Sexual conduct” can include lewd exhibition of genitals, but a distinction must be made between exhibitions that are lewd and those that are not lewd because nudity alone is not enough to make material legally obscene. “Serious political value” is broad enough to encompass that which might tend to bring about political and social changes- nudist magazines are not obscene because they champion nudist alternative lifestyle.
“I KNOW IT WHEN I SEE IT”
When film producers distributed the French movie “The Lovers” in 1958, a film about a woman involved in adultery who rediscovers human love, police arrested the manager of a theatre in Ohio for the public depiction of obscene material. The conviction was reversed in Jacobellis v. Ohio where Justice Potter Stewart announced his famous words: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligently doing so. But I know it when I see it, and the motion picture involved in this case is not that”.
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