Obscenity

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An obscenity is any utterance or act that strongly offends the prevalent morality of the time. [1] It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. [2] The word can be used to indicate a strong moral repugnance, in expressions such as "obscene profits" or "the obscenity of war". As a legal term, it usually refers to graphic depictions of people engaged in sexual and excretory activity.

Contents

United States obscenity law

The 18th century book Fanny Hill has been subject to obscenity trials at various times (image: plate XI: The bathing party; La baignade) Edouard-Henri Avril (9).jpg
The 18th century book Fanny Hill has been subject to obscenity trials at various times (image: plate XI: The bathing party; La baignade)
Cover of an undated American edition of Fanny Hill, ca. 1910 Fanny Hill 1910 cover.jpg
Cover of an undated American edition of Fanny Hill, ca. 1910

In the United States of America, issues of obscenity raise issues of limitations on the freedom of speech and of the press, which are otherwise protected by the First Amendment to the Constitution of the United States.

Federal obscenity law in the U.S. is unusual in that there is no uniform national standard. Former Justice Potter Stewart of the Supreme Court of the United States, in attempting to classify what material constituted exactly "what is obscene," famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced ... [b]ut I know it when I see it...." [3] In the United States, the 1973 ruling of the Supreme Court of the United States in Miller v. California established a three-tiered test to determine what was obscene—and thus not protected, versus what was merely erotic and thus protected by the First Amendment. Delivering the opinion of the court, Chief Justice Warren Burger wrote:

The basic guidelines for the trier of fact must be: (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. [4]

Non image-based obscenity cases in the U.S.

While most recent (2016) obscenity cases in the United States have revolved around images and films, the first obscenity cases dealt with textual works.

The classification of "obscene" and thus illegal for production and distribution has been judged on printed text-only stories starting with "Dunlop v. U.S., 165 U.S. 486 (1897)", which upheld a conviction for mailing and delivery of a newspaper called the 'Chicago Dispatch,' containing "obscene, lewd, lascivious, and indecent materials", which was later upheld in several cases. One of these was "A Book Named John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Massachusetts, "383 U.S. 413 (1966)" wherein the book "Fanny Hill", written by John Cleland c. 1760, was judged to be obscene in a proceeding that put the book itself on trial rather than its publisher. Another was "Kaplan v. California, 413 U.S. 115 (1973)" whereby the court most famously determined that "Obscene material in book form is not entitled to any First Amendment protection merely because it has no pictorial content."

In 2005, the U.S. Department of Justice formed the Obscenity Prosecution Task Force in a push to prosecute obscenity cases. [5] [6] Red Rose Stories, a site dedicated to text-only fantasy stories, became one of many sites targeted by the FBI for shutdown. [7] The government alleged that Red Rose Stories contained depictions of child rape. The publisher pleaded guilty. [8] Extreme pornographer Max Hardcore served 30 months of a 46-month prison sentence for obscenity. Many U.S. states have had bans on the sale of sex toys, regulating them as obscene devices. Some states have seen their sex toy bans ruled unconstitutional in the courts. [9] That ruling leaves only Mississippi, Alabama, and Virginia with current bans on the sale of obscene devices. [10]

Literature (non-fiction) communicating contraceptive information was prohibited by several states. The last such prohibition, in Connecticut, was overturned judicially in 1965.

Key U.S. court cases on obscenity

In Cohen v. California, 403 U.S. 15 (1971), the U.S. Supreme Court ruled that the word "fuck" although almost universally considered obscene when used to describe sexual intercourse is speech protected by the First Amendment to the United States Constitution when used to express a political belief. On April 26, 1968 Paul Robert Cohen, then 19 years old, donned a jacket bearing the words "Fuck the Draft" while visiting the Los Angeles Courthouse to testify as a defense witness in a court hearing. Although Cohen removed the jacket before entering the courtroom, he had been observed wearing it in the courthouse corridor by a court officer. When Cohen left the courtroom, the officer arrested him for disturbing the peace. Cohen defended his attire as being an expression of disapproval of the war in Vietnam. Nonetheless, he was convicted of "maliciously and willfully disturbing the peace" and sentenced to 30 days in jail. The conviction was eventually upheld by the Supreme Court of California, but reversed by the Supreme Court. In a 5-4 decision, Justice Harlan wrote for the Court that Cohen's conviction was based solely on speech and was protected by the First Amendment. 403 U.S. at 26. In a dissenting opinion, Justice Blackmun countered that Cohen's wearing of the jacket in the courthouse was not speech but conduct amounting to an "absurd and immature antic." 403 U.S. at .

Standards superseded by the Miller Test include:

FCC rules and federal law govern obscenity in broadcast media. Many historically important works have been described as obscene or prosecuted under obscenity laws, including the works of Charles Baudelaire, Lenny Bruce, William S. Burroughs, Allen Ginsberg, James Joyce, D. H. Lawrence, Henry Miller, Samuel Beckett, and the Marquis de Sade.

Criticism

Obscenity law has been criticized in the following areas: [12]

Obscenity laws remain enforceable under Miller despite these criticisms. Some states have passed laws mandating censorship in schools, universities, and libraries even if they are not receiving government aid that would require censorship in these institutions. These include Arizona, Kentucky, Michigan, Minnesota, South Carolina, and Tennessee. Twenty more states were considering such legislation in 2001–2002. [14]

Child pornography

Child pornography refers to images or films (also known as child abuse images [15] [16] [17] ); as such, visual child pornography is a record of child sexual abuse. [18] [19] [20] [21] [22] [23] Abuse of the child occurs during the sexual acts that are recorded in the production of child pornography, [18] [19] [21] [22] [23] [24] [25] and several professors of psychology state that memories of the abuse are maintained as long as visual records exist, are accessed, and are "exploited perversely." [23] [24] Some countries also bans writings [17] [26] [27] —that depict sexually explicit activities involving a child.

In New York v. Ferber , 458 U.S. 747 (1982), the U.S. Supreme Court ruled that child pornography need not be legally obscene in order to be outlawed. The Court ruled that in contrast to the types of images considered in Miller, images that depicted underlying harm to children need not appeal to "the prurient interest of the average person," portray sexual conduct in "a patently offensive manner," nor be considered holistically, in order to be proscribed. Another difference between U.S. constitutional law concerning obscenity and that governing child pornography is that the Supreme Court ruled in Stanley v. Georgia , 394 U.S. 557 (1969), that possession of obscene material could not be criminalized, while in Osborne v. Ohio , 495 U.S. 103 (1990), the high court ruled that possession of child pornography could be criminalized. The reason was that the motive for criminalizing child pornography possession was "to destroy a market for the exploitative use of children" rather than to prevent the material from poisoning the minds of its viewers. The three dissenting justices in that case argued, "While the sexual exploitation of children is undoubtedly a serious problem, Ohio may employ other weapons to combat it."

Censorship in film

This is most notably shown with the "X" rating under which some films are categorized. The most notable films given an "X" rating were Deep Throat (1972) and The Devil in Miss Jones (1973). These films show explicit, non-simulated, penetrative sex that was presented as part of a reasonable plot with respectable production values. Some state authorities issued injunctions against such films to protect "local community standards"; in New York, the print of Deep Throat was seized mid-run, and the film's exhibitors were found guilty of promoting obscenity. [28] According to the documentary This Film Is Not Yet Rated , films that include gay sex (even if implied) or female pleasure have been more harshly censored than their heterosexual, male counterparts. [29] The Motion Picture Association of America (MPAA) issues ratings for motion pictures exhibited and distributed commercially to the public in the United States; the ratings are issued through the Classification and Rating Administration (CARA). The intent of the rating system is to provide information about the content of motion pictures so parents can determine whether an individual motion picture is suitable for viewing by their children.

United Kingdom

In the United Kingdom, the Obscene Publications Acts sets the criteria for what material is allowed to be publicly accessed and distributed.

Stanley Kauffmann's novel The Philanderer was published by Penguin Books in 1957 and was unsuccessfully prosecuted for obscenity. [30]

Sex crime has generated particular concern. In 1976 the BBFC claimed that, in that year, it had viewed 58 films depicting "explicit rape", declaring scenes that glorified it as "obscene". As opposed to questions of "indecency", which have been applied to sexual explicitness, films charged with being obscene have been viewed as having "a tendency to deprave and corrupt" and been liable to prosecution. [28]

In 2008, the UK prosecuted a man for writing a fictional sex story (R v Walker). [31] [32] In 2009, the crown prosecution service (CPS) dropped the case. [33]

Obscenity law in England and Wales is currently governed by the Obscene Publications Act, but obscenity law goes back much further into the English common law. The conviction in 1727 of Edmund Curll for the publication of Venus in the Cloister or the Nun in her Smock under the common law offence of disturbing the peace appears to be the first conviction for obscenity in the United Kingdom, and set a legal precedent for other convictions. These common law ideas of obscenity formed the original basis of obscenity law in other common law countries, such as the United States.

For visual works of art the main obscenity law in England and Wales was, until the 1960s, the Vagrancy Act 1838 which was successfully used in prosecutions against D.H. Lawrence for an exhibition of his paintings at the Warren Gallery, London, in 1929, [34] and in 1966 against the British artist Stass Paraskos for an exhibition of his paintings held that year in the northern English city of Leeds. [35] Parts of the Act were repealed shortly after the Paraskos trial and it has rarely been used since in relation to visual art.

The Obscene Publications act is notoriously vague, defining obscenity as material likely to "deprave and corrupt". The 1959 act was passed just as most Western countries were about to enter a new phase of sexual freedom. The trial of Penguin Books over Lady Chatterley's Lover in 1960 failed to secure a conviction and the conviction in the 1971 trial of Oz magazine was overturned on appeal. An attempt to prosecute the University of Central England in 1997 over a copy of a library book by Robert Mapplethorpe was abandoned amidst derision from academics and the media. [36]

During the 1960s and 1970s most Western countries legalised hardcore pornography. By the 1980s the UK was almost the only liberal democracy where the sale of hardcore pornography was still completely illegal, although ownership was not a criminal offence (except child pornography). Home videotape was a booming market and it was relatively simple for individuals to smuggle hardcore material in from Europe or the United States, where it had been purchased legally, either for personal use or to copy it for distribution. This resulted in a considerable black market of poor quality videotapes. Meanwhile, people attempting to buy pornography legally would often be stuck with heavily censored R18 certificate material.

While the authorities did their best to stay on top of illegal pornography they found that juries, while not particularly liking the material, were reluctant to convict defendants where the material was intended for private use among consenting adults. During the 1990s the advent of the internet made it easier than ever before for British citizens to access hardcore material. Finally, in 2000, following the dismissal of a test case brought by the BBFC, hardcore pornography was effectively legalised, subject to certain conditions and licensing restrictions. [37] It is still an offence to sell obscene material by mail order. [38]

After 1984 videotape sellers were more likely to be prosecuted under the Video Recordings Act rather than the OPA. The VRA requires that all videos must have a certificate from the BBFC. If the BBFC refuses a certificate a video is effectively banned for home viewing, but not necessarily in the cinema. Four films that were originally refused a certificate, The Exorcist, Straw Dogs, The Evil Dead and The Texas Chainsaw Massacre were granted a certificate in the late 1990s and have subsequently been screened on mainstream television.

New Zealand

In New Zealand, screening of Deep Throat (1972) was only cleared in 1986. However, the film has not been screened because the only cinema that has tried to organize a screening was thwarted by the city council that owned the building's lease. [28]

China

In 2016, the Ministry of Culture in China censored 23 companies for hosting obscene content online. The take-down included over 20,000 live feeds from 26 different websites that were hosting a variety of content involving pornography and violence. [39]

Canada

Section 163 of the Canadian Criminal Code provides the country's legal definition of "obscenity". Officially termed as "Offences Tending to Corrupt Morals", [40] the Canadian prohibited class of articles that are to be legally included as "obscene things" is very broad, including text-only written material, pictures, models (including statues) records or "any other obscene thing.” According to Section 163(8), if "a dominant characteristic of the publication is the undue exploitation of sex, or the combination of sex and at least one of crime, horror, cruelty or violence,” that publication is deemed to be "obscene" under the current law. [41]

The current law states

163. (1) Every person commits an offence who makes, prints, publishes, distributes, circulates or has in their possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or any other obscene thing.

The Canada Border Services Agency seizes items it labels obscene.

In 1993, Canadian police arrested the 19-year-old writer of a fictional sex story "The Forestwood Kids", [42] however, the case was dismissed in 1995. [43]

In February 2009, citing its Policy On The Classification Of Obscene Material, the CBSA banned two Lucas Entertainment films because they show the "ingestion of someone else's urine... with a sexual purpose". [44] [45]

Brazil

Ever since 1940, in the Title VI of the Penal Code, naming crimes against sexual dignity (until 2009 crimes against social conventions), the fourth chapter is dedicated to a crime named "public outrage related to modesty" (Portuguese : ultraje público ao pudor, pronounced  [uwˈtɾaʒi ˈpublikw aw puˈdoʁ] ).

It is composed of two articles, Art. 233 "Obscene Act", "to practice an obscene act in a public place, or open or exposed to the public", punished with arrest of 3 months to 1 year or a fine; and Art. 234 "Obscene Written Piece or Object", to do, import, export, purchase or have in one's property, to ends of trade, distribution or public display, any written, drew, painted, stamped or object piece of obscenity, punished with arrest of 6 months to 1 years or a fine. [46]

Criticism to the legislation have included: [47]

It is often used against people who expose their nude bodies in public environments that were not warranted a license to cater to the demographic interested in such practice (the first such place was the Praia do Abricó in Rio de Janeiro, in 1994), even if no sexual action took place, and it may include for example a double standard for the chest area of women and men in which only women are penalized. Such a thing took place in FEMEN protests in São Paulo, in 2012. [48]

South Korea

In 2017 the Supreme Court in South Korea ruled that an image of unclothed male genitalia is obscene if not contextualized in a cultural, artistic, medical or educational setting. [49]

Other countries

Various countries have different standings on the types of materials that they as legal bodies permit their citizens to have access to and disseminate among their local populations. The set of these countries' permissible content vary widely accordingly with some having extreme punishment up to and including execution for members who violate their restrictions, as in the case of Iran where the current laws against pornography now include death sentences for those convicted of producing pornography. [50]

In India the Obscenity law is the same as had been framed by the British Government. Charges of obscenity have been levelled against various writers and poets till date; the law has not yet been revised. The famous trials relate to the Hungryalists who were arrested and prosecuted in the 1960s.

See also

Notes

  1. Merriam-Webster Online Archived 10 April 2010 at the Wayback Machine , accessed September 2010.
  2. Glare, P. G. W., ed. (8 March 2012). "obscēnus". Oxford Latin dictionary (2 ed.). Oxford. p. 1342. ISBN   9780199580316. OCLC   785944255.
  3. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
  4. Miller v. California, 413 U.S. 15, 24 (1972).
  5. Abramson, Larry (27 September 2005). "Federal Government Renews Effort to Curb Porn". Morning Edition. NPR. Archived from the original on 30 June 2012. Retrieved 11 April 2012.
  6. Gellman, Barton (20 September 2005). "Recruits Sought for Porn Squadn". The Washington Post. Archived from the original on 20 October 2012. Retrieved 11 April 2012.
  7. "Red Rose Stories Closed by FBI". XBiz. 7 October 2005. Archived from the original on 25 April 2012. Retrieved 11 April 2012.
  8. Ward, Paula Reed (2008-08-07) Woman pleads guilty to obscenity for child-sex story site Archived 25 November 2011 at the Wayback Machine . Pittsburgh Post-Gazette Retrieved 2011-05-08.
  9. Kandyba, Slav (4 November 2008). "Texas AG Drops Adult Toy Case Appeal". XBiz. Archived from the original on 18 February 2012. Retrieved 11 April 2012.
  10. Samalin, Zach (14 February 2008). "Court Lifts Ban on Sex Toys in Texas". Newser. Archived from the original on 23 May 2013. Retrieved 11 April 2012.
  11. Hudson, David (28 October 1998). "Wisconsin high court could strike down obscenity law". First Amendment Center. Archived from the original on 4 November 2009. Retrieved 13 January 2011.
  12. Huston, William: "Under Color of Law, Obscenity vs. the First Amendment", Nexus Journal, Vol 10 (2005): 75:82.
  13. "Obscene, Indecent and Profane Broadcasts". FCC. Archived from the original on 9 December 2013. Retrieved 17 August 2013.
  14. "Technology and Liberty | American Civil Liberties Union". Aclu.org. 14 November 2008. Archived from the original on 15 October 2002. Retrieved 17 August 2013.
  15. Wortley, Richard; Stephen Smallbone (2006). Situational Prevention Of Child Sexual Abuse, Volume 19 of Crime prevention studies. Criminal Justice Press. p. 192. ISBN   1-881798-61-5.
  16. Sanderson, Christiane (2004). The seduction of children: empowering parents and teachers to protect children from child sexual abuse. Jessica Kingsley Publishers. p. 133. ISBN   1-84310-248-X.
  17. 1 2 Akdeniz, Yaman (2008). Internet child pornography and the law: national and international responses . Ashgate Publishing, Ltd. p.  11. ISBN   978-0-7546-2297-0.
  18. 1 2 Finkelhor, David (Summer–Fall 1994). "Current Information on the Scope and Nature of Child Sexual Abuse". Future of Children. 4 (2): 31–53. doi:10.2307/1602522. JSTOR   1602522. Archived from the original on 6 January 2009.
  19. 1 2 Hobbs, Christopher James; Helga G. I. Hanks; Jane M. Wynne (1999). Child Abuse and Neglect: A Clinician's Handbook. Elsevier Health Sciences. p. 328. ISBN   0-443-05896-2. Child pornography is part of the violent continuum of child sexual abuse
  20. Claire Milner, Ian O'Donnel. (2007). Child Pornography: Crime, computers and society. Willan Publishing. p. 123. ISBN   978-1-84392-357-2.
  21. 1 2 Sheldon, Kerry; Dennis Howitt (2007). Sex Offenders and the Internet . John Wiley and Sons. p.  20. ISBN   978-0-470-02800-1. 'Child pornography is not pornography in any real sense; simply the evidence recorded on film or video tape - of serious sexual assaults on young children' (Tate, 1992, p.203) ... 'Every piece of child pornography, therefore, is a record of the sexual use/abuse of the children involved.' Kelly and Scott (1993, p. 116) ... '...the record of the systematic rape, abuse, and torture of children on film and photograph, and other electronic means.' Edwards(2000, p.1)
  22. 1 2 Klain, Eva J.; Davies, Heather J.; Hicks, Molly A.; ABA Center on Children and the Law (2001). Child Pornography: The Criminal-justice-system Response. National Center for Missing & Exploited Children. Because the children depicted in child pornography are often shown while engaged in sexual activity with adults or other children, they are first and foremost victims of child sexual abuse.
  23. 1 2 3 Wortley, Richard; Stephen Smallbone. "Child Pornography on the Internet". Problem-Oriented Guides for Police. No. 41: 17. The children portrayed in child pornography are first victimized when their abuse is perpetrated and recorded. They are further victimized each time that record is accessed.
  24. 1 2 Sheldon, Kerry; Dennis Howitt (2007). Sex Offenders and the Internet . John Wiley and Sons. p.  9. ISBN   978-0-470-02800-1. ...supplying the material to meet this demand results in the further abuse of children. Pictures, films and videos function as a permanent record of the original sexual abuse. Consequently, memories of the trauma and abuse are maintained as long as the record exists. Victims filmed and photographed many years ago will nevertheless be aware throughout their lifetimes that their childhood victimization continues to be exploited perversely.
  25. Agnes Fournier de Saint Maur (January 1999). "Sexual Abuse of Children on the Internet: A New Challenge for INTERPOL" (PDF). Expert Meeting on Sexual Abuse of Children, Child Pornography and Paedophilia on the Internet: an international challenge. UNESCO (United Nations Educational, Scientific and Cultural Organization). Archived (PDF) from the original on 8 April 2011.
  26. "Definition of 'Child Pornography'". Criminal Code of Canada, Section 163.1. Electronic Frontier Canada. 2004. Archived from the original on 2 March 2009.
  27. "Sharpe Not Guilty of Possessing Written Child Pornography". CBC News. 26 March 2002. Archived from the original on 8 May 2008.
  28. 1 2 3 "Sex and violence - Censorship - actor, film, movie, show, cinema, scene". Filmreference.com. Archived from the original on 29 October 2013. Retrieved 17 August 2013.
  29. This Film Is Not Yet Rated. 2006.
  30. Kauffmann, S. (1957) The Philanderer. Harmondsworth: Penguin Books "When first published in 1954, this book was the subject of an unsuccessful prosecution for obscene libel. Mr. Justice Stable's historic summing-up on that occasion is included as an appendix."
  31. The Obscene Publications Act rides again. "Girls Aloud case heads for court - net holds its breath" Archived 10 August 2017 at the Wayback Machine by John Ozimek, Posted in Law, 6 October 2008 11:26 GMT
  32. "Date set for internet 'obscene' publications trial. Man in court over 'Girls Aloud' story" Archived 10 August 2017 at the Wayback Machine by John Ozimek Posted in Law, 22 October 2008 14:05 GMT
  33. "Blogger who wrote about killing Girls Aloud cleared" by The Independent reporter Mark Hughes. Last updated on 30 June 2009
  34. See T.W. Earp, 'The Paintings of DH Lawrence' in The New Statesman (London newspaper), 17 August 1929, p.578
  35. Norbert Lynton, Stass Paraskos (Mitcham: Orage Press, 2003) 7f
  36. "After a year out on loan Mapplethorpe book is set to return to library shelves". Archived from the original on 23 August 2006. Retrieved 6 March 2008.
  37. "FAQ: Buying Adult Films: Is it legal?". Melonfarmers.co.uk. Archived from the original on 8 August 2013. Retrieved 17 August 2013.
  38. "UK | High Court blocks web porn sales". BBC News. 23 May 2005. Archived from the original on 20 June 2014. Retrieved 17 August 2013.
  39. Xinhua News Agency (12 July 2016). "China punishes firms for spreading obscenity, violence on Internet".
  40. Criminal Code (R.S.C., 1985, c. C-46) Archived 26 April 2014 at the Wayback Machine (19 September 2014) Justice Laws Website. Retrieved 21 December 2014.
  41. (Criminal Code (R.S.C., 1985, c. C-46) Archived 7 April 2018 at the Wayback Machine
  42. "Child-less Pornography". Archived from the original on 10 March 2010.
  43. "Regina v. Pecciarich". efc.ca. Archived from the original on 23 September 2015. Retrieved 4 April 2015.
  44. Michael Lucas Implores Obama, Harper to Talk About Porn Archived 15 April 2009 at the Wayback Machine , AVN News, 20 February 2009.
  45. Lucas Porn Films Detained At Border Archived 20 August 2010 at the Wayback Machine , DNA magazine, 13 February 2009
  46. DJi -233 a 234- DL-002.848-1940 - Còdigo Penal - Ultraje Público ao Pudor Archived 18 September 2013 at the Wayback Machine (in Portuguese)
  47. A propósito dos crimes de ultraje público ao pudor - Paulo Queiroz Archived 21 February 2014 at the Wayback Machine (in Portuguese)
  48. Category: Ato Obsceno - Para Entender Direito - Folha Uol Archived 27 October 2013 at the Wayback Machine (in Portuguese)
  49. "Archived copy". Archived from the original on 1 November 2017. Retrieved 24 November 2017.CS1 maint: archived copy as title (link)
  50. Saeed Kamali Dehghan (18 January 2012) "Iran confirms death sentence for 'porn site' web programmer" Archived 4 September 2017 at the Wayback Machine The Guardian. Retrieved 21 December 2014.

Related Research Articles

Miller v. California, 413 U.S. 15 (1973), was a landmark decision of the US Supreme Court modifying its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, political, or scientific value". It is now referred to as the three-prong standard or the Miller test.

Hardcore pornography Explicit graphical depictions of sexual acts

Hardcore pornography, or hardcore porn, is pornography that features detailed depictions of sexual organs or sexual acts such as vaginal, anal or oral intercourse, cunnilingus, fellatio, fingering, anilingus, ejaculation, and fetish play. The term is in contrast with less-explicit softcore pornography. Hardcore pornography usually takes the form of photographs, films and cartoons. Since the 1990s, hardcore pornography has become widely available over the Internet, making it more accessible than ever before.

Pornography in the United States

Pornography in the United States has existed since the country's origins and has become more readily accessible in the 21st century. Advanced by technological development, it has gone from a hard-to-find "back alley" item, beginning in 1969 with Blue Movie by Andy Warhol, the Golden Age of Porn (1969–1984) and home video, to being more available in the country and later, starting in the 1990s, readily accessible to nearly anyone with a computer or other device connected to the Internet. The U.S. has no current plans to block explicit content from minors, as many other countries have planned or processed to do.

Roth v. United States, 354 U.S. 476 (1957), along with its companion case Alberts v. California, was a landmark decision of the US Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.

PROTECT Act of 2003

The PROTECT Act of 2003 is a United States law with the stated intent of preventing child abuse as well as investigating and prosecuting violent crimes against children. "PROTECT" is a contrived acronym which stands for "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today".

Stanley v. Georgia, 394 U.S. 557 (1969), was a United States Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law, in the form of mere possession of obscene materials.

Due to the international nature of the Internet, the legal status of Internet pornography carries with it special issues with regard to the law. There is no one set of laws that apply to the distribution, purchase, or possession of Internet pornography. This means that, for example, even if a pornographer is legally distributing pornography, the person receiving it may not be legally doing so due to local laws.

Pornography in Europe

Pornography in Europe has been dominated by a few pan-European producers and distributors, the most notable of which is the Private Media Group that successfully claimed the position previously held by Color Climax Corporation in the early 1990s. Most European countries also have local pornography producers, from Portugal to Serbia, who face varying levels of competition with international producers. The legal status of pornography varies widely in Europe; its production and distribution are illegal in countries such as Ukraine, Belarus and Bulgaria, while Hungary is noted for having liberal pornography laws.

<i>United States v. Extreme Associates, Inc.</i>

United States v. Extreme Associates, 431 F.3d 150, is a 2005 U.S. law case revolving around issues of obscenity. Extreme Associates, a pornography company owned by Rob Zicari and his wife Lizzy Borden, was prosecuted by the federal government for alleged distribution of obscenity across state lines. After several years of legal proceedings, the matter ended on March 11, 2009, with a plea agreement by Rob Zicari and Lizzy Borden.

New York v. Ferber, 458 U.S. 747 (1982), was a landmark decision of the US Supreme Court, unanimously ruling that the First Amendment right to free speech did not forbid states from banning the sale of material depicting children engaged in sexual activity, even if the material was not obscene.

Child erotica is non-pornographic material relating to children that is used by any individuals for sexual purposes. It is a broader term than child pornography, incorporating material that may cause sexual arousal such as nonsexual images, books or magazines on children or pedophilia, toys, diaries, or clothes. Law enforcement investigators have found that child erotica is often collected by pedophiles and child sexual abuse offenders. Child erotica may be collected as a form of compulsive behavior and as a substitute for illegal child pornography and is often a form of evidence for criminal behavior.

Legal status of fictional pornography depicting minors

The legal status of fictional pornography depicting minors varies from country to country and concerns simulated pornography and child pornography.

In People vs Freeman of 1988, the California Supreme Court stated that adult film production was to be protected as free speech under the First Amendment. They ruled that since such films did not include obscene images and indecency, and stayed within society's standards, the adult film industry should be granted the freedom of speech. Escaping highly regulated government intervention, regulation in the adult film industry has been limited to preventing child pornography. In the United States Code of Regulations, under title Title 18, Section 2257, no performers under the age of 18 are allowed to be employed by adult industry production companies. The failure to abide by this regulation results in civil and criminal prosecutions. To enforce the age entry restriction, all adult industry production companies are required to have a Custodian of Records that documents and holds records of the ages of all performers.

Child pornography laws in the United States specify that child pornography is illegal under federal law and in all states and is punishable by up to 20 years' imprisonment or fine of $5000. The Supreme Court of the United States has found child pornography to be "legally obscene", a term that refers to offensive or violent forms of pornography that have been declared to be outside the protections of the First Amendment to the United States Constitution. Federal sentencing guidelines on child pornography differentiate between production, distribution, and purchasing/receiving, and also include variations in severity based on the age of the child involved in the materials, with significant increases in penalties when the offense involves a prepubescent child or a child under the age of 12. U.S. law distinguishes between pornographic images of an actual minor, realistic images that are not of an actual minor, and non-realistic images such as drawings. The latter two categories are legally protected unless found to be obscene, whereas the first does not require a finding of obscenity.

An anti-pornography movement in the United States has existed since before the 1969 Supreme Court decision of Stanley v. Georgia, which held that people could view whatever they wished in the privacy of their own homes, by establishing an implied "right to privacy" in U.S. law. This led President Lyndon B. Johnson, with the backing of Congress, to appoint a commission to study pornography. The anti-pornography movement seeks to maintain or restore restrictions and to increase or create restrictions on the production, sale or distribution of pornography.

Legality of child pornography

The legality of child pornography is explicitly addressed in 94 of the 187 Interpol member states as of 2008, according to research performed by the International Centre for Missing & Exploited Children (ICMEC) Koons Family Institute on International Law and Policy. Of those 94 countries, 58 criminalized possession of child pornography regardless of intent to distribute. This figure does not count legislation outlawing all pornography; figures that also include non-specific bans on all pornography would therefore be higher if available.

Child pornography is pornography that exploits children for sexual stimulation. It may be produced with the direct involvement or sexual assault of a child or it may be simulated child pornography. Abuse of the child occurs during the sexual acts or lascivious exhibitions of genitals or pubic areas which are recorded in the production of child pornography. Child pornography may use a variety of mediums, including writings, magazines, photos, sculpture, drawing, cartoon, painting, animation, sound recording, film, video, and video games. Child pornography may be created for profit or other reasons.

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), is a U.S. Supreme Court case which struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech". The case was brought against the Government by the Free Speech Coalition, a "California trade association for the adult-entertainment industry"; along with Bold Type, Inc., a "publisher of a book advocating the nudist lifestyle"; Jim Gingerich, who paints nudes; and Ron Raffaelli, a photographer who specialized in erotic images. By striking down these two provisions, the Court rejected an invitation to increase the amount of speech that would be categorically outside the protection of the First Amendment.

Sable Communications of California v. Federal Communications Commission, 492 U.S. 115 (1989), was a United States Supreme Court case involving the definition of "indecent material" and whether it is protected under the First Amendment to the United States Constitution. The Court invalidated part of a federal law that prohibited "dial-a-porn" telephone messaging services by making it a crime to transmit commercial telephone messages that were either "obscene" or "indecent".

United States obscenity law deals with the regulation or suppression of what is considered obscenity. In the United States, discussion of obscenity typically relates to pornography, as well as issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. The States have a direct interest in public morality and have responsibility in relation to criminal law matters, including the punishment for the production and sale of obscene materials. State laws operate only within the jurisdiction of each state, and there are a wide differences in such laws. The federal government is involved in the issue indirectly, by making it an offense to distribute obscene materials through the post, to broadcast them, as well as in relation to importation of such materials.

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Further reading