Think the Rubik’s Cube is confusing, try the definition of Obscenity

So what is obscene?  This is a debate that has yet to yield a solid answer and one that continues to draw debate, confusion, and argument.  In this week’s lectures we talk about the Hicklin Test, Roth and Miller who have their own opinions which go along with the countless others that have tried to set a standard.

 

The Hicklin test came about during Regina v. Hicklin way back in 1868 and said something is obscene it had "a tendency to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands it might fall.”  Later, a judge said that obscenity has to be determined by the effect of the entire book, not bits and pieces of it.  Than others said that “a book is not obscene when, if viewed objectively, the presentation is sincere and the erotic material is not introduced to promote lust and does not furnish the dominant note of the publication.”  This was a way to test just the main emphasis of the material and not the individual piece that could be viewed as obscene.

 

The good old Roth way of defining obscenity, it involves three criteria and is just as confusing as Hicklin, only with even more lack of a solid answer.  It says: “the dominant theme of the material taken as a whole appeals to a prurient interest in sex; the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and the material is utterly without redeeming social value.”  Now if that isn’t clear cut, I don’t know what is.

The third way to define what obscenity is was created by Miller.  This so called test is often compared to Roth and is seen as a updated version of it.  When I say updated, don’t assume this means clearer and more understandable, it’s still as confusing and loosely defined.  This said that something is obscene if it complies with the Roth test, if it describes sexual content in a offensive way, and when it’s take as a whole, if it lacks serious literary, artistic, political or scientific value.  Oh now I got it, this test makes it so much easier to understand, right?  At least this test goes the extra yard and takes the whole piece of material into account and not just some image that offended somebody. 

So with all of these ways of defining what obscenity is, what is it then?  Wikipedia has it listed as the following:  “The
United States has constitutional protection for freedom of speech, which is not interpreted to protect every utterance. The Supreme Court has found that, when used in the context of the First Amendment, the word "obscenity" means material that deals with sex. In U.S. legal texts, the term "obscenity" now always refers to this "Miller test obscenity". The Supreme Court has ruled that it is constitutional to regulate the sale or transmission of obscenity, but that it is unconstitutional to pass laws concerning the personal possession of obscenity. Federal obscenity laws at present apply to inter-state obscenity issues such as distribution; intra-state issues are for the most part still governed by State law.”  So there you have it, obscenity goes by the Miller test for legal purposes today.  I’m sure this isn’t concrete and will change many more times throughout our lives as new topics arise and society’s population commit “obscentiy crimes”.