Photo illustration by John Lyman



Obscene to Thee, but Not We

There is a movement among right-wing politicians and special interest groups to redefine obscenity to be a term that indiscriminately censors LGBTQ Americans, individuals who are engaged in commercial sex work and adult entertainment, and artists and authors who write from perspectives which conservatives disagree with. If a politician is drolling on and on about ‘wokeism’ on social media, more than likely they are leading the charge.

Regardless of the sociology behind this push, the United States has a long-standing legal tradition of defining materials that are clearly obscene. The Supreme Court ruled in New York v. Ferber that child pornography isn’t protected by the First Amendment. This narrowed the definition of obscene material as it deals with exploited minors and child sexual abuse and exploitation materials. Almost no one in my professional circle challenges the concept that child pornography is not only wrong but inherently evil and illegal and should be prosecuted. There is a huge difference when you label something obscene simply because it deals with queer subject matter or comprehensive sex education.

You’re probably wondering why these right-wing lawmakers view LGBTQ material and content that deals with sexual expression as obscene and a threat to children. The answer is very complex. Firstly, it all starts with personal ideologies and spiritual beliefs. At one of the most basic levels, individuals who often hail from hyper-religious environments have the most issues with sexuality. It is these individuals who are steeped in a deep religious belief who also claim to struggle with a so-called porn addiction. However, mainstream psychology doesn’t recognize porn addiction. The consensus is that porn use doesn’t predict problems with addiction, but religiosity does.

This is a similar standard with issues like same-sex marriage, sex education in schools, or the presence of LGBTQ art and literature in mainstream culture. In the case of same-sex marriage, an individual’s religiosity does correlate to their opposition to this very basic human right. Religiosity governs adherents’ responses to sexuality, leading some people to view certain speech as obscene. Case law provides a different outlook.

In 1973, the Supreme Court prescribed the primary legal test for determining whether some form of expression constitutes obscenity. Referred to as the Miller test, the standard was based on a decision the high court handed down in Miller v. California. The high court ruled that obscene materials are defined as materials that an average person, by applying “contemporary community standards,” views as a whole that appeal to a prurient interest. Prurient interest is defined as “morbid, degrading, or excessive in sexual matters.” This includes “material is judged to be obscene only if it is held to appeal predominantly to a prurient rather than a nonprurient interest in sex,” according to the American Psychological Association’s Dictionary of Psychology. The vast majority of legal and consensual pornography isn’t obscene or even “prurient” in nature, per the American Psychological Association’s Dictionary of Psychology definition.

Obscene material also includes material depicting or describing in a patently offensive manner sexual conduct or some excretory functions specifically defined by applicable state law; and that the work, taken as a whole, fails to contribute any degree of literary, artistic, political, or scientific value to public life. These views translate to a three-pronged standard used to determine whether any material meets the legal definition of obscene.

Differing from previous tests for obscenity used by the judicial system in the past, Miller v. California highlights applications of local community standards by a jury in obscenity cases. This means that a local community, which typically comprises the jury of a state-level criminal violation of obscenity laws, applies standards of tolerance and overall acceptability as understood by a local community – not a national standard. Much academic work has been done to define the “average person” who would sit on a jury and how that individual would apply or not apply the community standards in determining obscenity materials. It is crucial to note that the definition of “local contemporary community standards” is still questioned.

Given the nature of this standard, this could create a potential crisis in a court. If state and local laws governing obscenity are unclear and the courts remain unclear on whether these laws are constitutional, several forms of expression protected by the First Amendment are at risk. This includes putting consensual sexual expression at risk. According to the U.S. Department of Justice, material that is labeled as “obscene” isn’t protected under the First Amendment. The ambiguity of defining obscenity is still the main point of debate. In Smith v. United States, the high court found that a legal definition of obscenity must avoid intentional or unintentional ambiguity.

Additionally, Smith granted the standard that a state legislature’s definition of local community standards with regard to the status of obscenity doesn’t necessarily govern a juror interpreting community standards.

Since these cases, the courts rendered obscenity statutes in some states unconstitutional and have adjusted legal definitions for the Internet era. One of the most notable interpretations of obscenity within the last three decades derived from the Supreme Court’s benchmark ruling in Reno v. American Civil Liberties Union in 1997. Dealing with the Internet and acceptable communication for adults and minors, Reno established anti-indecency and definitions of obscene materials online. The high court found that much of the Communications Decency Act of 1996 lacked the precision to protect free speech rights online.

While the court gutted the Communications Decency Act of 1996, it left in place Section 230. Section 230 is a controversial law that guarantees online platforms safe harbor from potential civil and criminal liability for the actions of third-party users. This law applies to an adult website’s right to self-regulate its platform and remove content that is considered offensive and obscene. An argument can be made that the legal definition of obscenity has narrowed significantly to protect legal forms of speech, such as other consensual sexual content. A ruling in the case Ashcroft v. Free Speech Coalition indicates this definition is narrowing. The court ruled in favor of the coalition, a group representing the porn industry, to protect an adult performer’s action of acting or simulating the role of a minor in a performance with other adults.

This struck down provisions in the Child Pornography Prevention Act of 1996 restricting lawful speech about producing adult pornographic content. The high court found that the standard of an individual who “appears to be” a minor but is actually an adult in a consensual sexual situation is protected speech.

Young-looking performers who engage in certain taboo fetishes or age-play who are otherwise adults can do so without facing charges. Congress passed legislation attempting to incorporate Ashcroft, Ferber, and Miller, like the PROTECT Act. The aftermath of this legislation resulted in legal challenges and attempts to censor literature involving comic books, manga, and graphic novels featuring controversial material.

This definition is crucial to my argument because it adds further context to a definition of obscenity that people who wish to redefine such a standard for discriminatory purposes overlook. At the heart of this multi-faceted debate, the term obscenity can’t evolve or devolve, into something that’s very censorious.

Obscenity’s definition is easily applied to content such as child pornography. If the definition is changed to incorporate speech dealing with LGBTQ subject matter or comprehensive sexual education, then the outcome will be a civil liberties disaster pushed by an influential political minority. The vast majority of Americans oppose efforts to ban books and punish educators and librarians for providing these materials to young people. This is the case for most people who consume mainstream culture too.

If someone calls something obscene in a political tirade, most people will likely think that individual is under the influence of a morally bankrupt censorship movement. Obscenity such as child pornography needs to be prosecuted by all means. This shouldn’t be at the expense of our civil liberties, our children’s education, or the sacrosanct First Amendment right to consensual sexual expression among consenting adults.

Attempts to redefine obscenity ultimately violate our civil liberties, sexual freedoms, and educational rights.