Obscenity

Obscenity is a unique legal phenomenon for three reasons. First, the defendant does not have to know the exact content of the material at issue; he or she only has to know the general nature of the material in order to be convicted. Second, the defendant almost necessarily has to employ social scientists to conduct a study indicating that the material does not offend the community's standards. Third, because the crime of obscenity depends on the community's sentiment, the defendant does not know if he or she has committed a crime until the verdict is returned. Thus, someone can own obscene material and not know that the material is illegal until a jury decides whether it offends community standards. Psychological research is used to measure community standards.

The legal definition and method of determining obscenity were established in Miller v. California (1973). Obscenity depends primarily on three factors. A material is obscene if an average person applying community standards would find that it (a) appeals to a prurient interest (i.e., an unhealthy, morbid, or degrading interest in sex), (b) depicts sexual conduct specifically defined by the state as patently offensive, and (c) lacks any artistic, literary, political, or scientific value.

In Smith v. United States (1977), the court clarified that “prurient interest” and “patently offensive” were to be determined by an average person applying contemporary community standards. Additionally, in Pinkus v. United States (1978), the court found that children are not part of the community included in the community standards criteria. However, these definitions failed to address what constitutes a community.

States have much flexibility in determining what behaviors are considered patently offensive sexual material. The Miller ruling and state court rulings have provided some examples. For instance, the Illinois state court in Ward v. Illinois (1977) named bestiality and sadomasochism as examples of patently offensive sexual conduct. Currently, seven states do not have obscenity laws. Of those that do, most states include the Miller definition as well as provide examples of patently offensive materials. Other than these definitions, stores selling such material and individuals have no explicit guidance on whether a material is obscene or not. Because the definition of obscenity is determined by community sentiment, it is difficult to know whether a material is obscene until a jury makes that determination. Researchers can conduct studies and testify about the community's standards.