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6-2 Journal: The Evolution of Obscenity
Trinity Phoenix Swiderski
Southern New Hampshire University
COM-530
Instructor Robert Krueger
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6-2 Journal: The Evolution of Obscenity
Obscenity is a topic that transcends both legal and ethical realms. Digital communicators
can very easily create and disseminate content that is considered distasteful, but that doesn’t
necessarily mean it is obscene or illegal (Southern New Hampshire University, 2023). There are
two specific Supreme Court cases that helped define obscenity and shape the laws surrounding it
which are outlined and applied in this journal.
Roth v. United States (1957)
Samuel Roth was convicted of violating federal obscenity standards, specifically
the Comstock Act, which forbade the mailing of obscene materials (Moore, Murray & Youm,
2021). He was found guilty by both the U.S. District Court of the Southern District of New York
and a federal appeals court. As a result of this case the U.S. Supreme court declared that obscene
speech did not receive First Amendment protections, and provided a four-prong constitutional
test which would judge obscenity (Moore, Murray & Youm, 2021). The four criteria which must
be met for something to be considered obscene are: “(1) whether to the average person, (2)
applying contemporary community standards, (3) the dominant theme of the material taken as a
whole, (4) appeals to prurient interest” (Moore, Murray & Youm, 2021, p. 233).
Miller v. California (1973)
Interestingly, this case is still considered the most current decision regarding
obscenity (Moore, Murray & Youm, 2021). The decision in Miller reaffirmed that obscene
materials do not receive First Amendment protection. Miller was convicted of sending a mass
mailing marketing campaign which was intended to sell sexually explicit illustrated books,
wherein the advertisements themselves were considered pornographic in nature. This resulted in
a new conjunctive three-prong test for obscenity and Miller’s case being remanded back to the
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state appellate court to be further reviewed so the test could be applied. This test was: “(1) that
the average person, applying contemporary community standards, find the work as a whole
appeals to prurient interests; (2) that the work depict or describe in a patently offensive way
sexual conduct specifically defined by state law; and (3) that the work, taken as a whole, lacks
serious literary, artistic, political or scientific value” (Moore, Murray & Youm, 2021, p. 262).
Furthermore, it recognized that states would have a right to prohibit such materials as they did
indeed present a danger to unwilling recipients, and a definition of obscenity would therefore be
required so states would be able to regulate without infringement of First Amendment rights
(Moore, Murray & Youm, 2021). The decisions made in this case granted the states a lot more
power in their own abilities to further regulate and define obscenity.
Definition of Obscenity
While Roth provided the four-prong test, the Court still struggled to define what
those individual items meant after the fact. The Court also attempted to differentiate sex from
obscenity but was not overtly successful. Roth would be used as a precedent for many
subsequent cases, and was even strongly reaffirmed by multiple justices during the Fanny Hill
case which resulted in the “Utter” test – does the work not only meet all Roth statues, but is it
also considered “utterly without redeeming social value”? (Moore, Murray & Youm, 2021, p.
235). Miller added the “unwilling recipient” criteria to the Roth definition of obscenity, as well
as the brand new and still current three-prong test. The decisions were different in that Roth
somewhat sought to leave the definition of obscenity open to interpretation, whereas Miller was
required to provide a definition as means for states to legally regulate obscene material.
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First Amendment Protections
According to the decisions made in Roth v. United States (1957) and Miller v.
California (1973) obscenity receives no First Amendment protection because it fails the defining
tests which were formulated because of each case. In fact, Miller expressly defines obscenity to
give states the ability to protect their citizens from such things. For the same reason why violent
or discriminatory speech is not protected by the First Amendment and can even result in criminal
charges in some events, obscene speech and materials are also not protected by the constitution.
Understanding Obscenity Laws
As professionals create digital messages, they should keep in mind the golden rule
that just because you can, doesn’t mean you should. While shock value or offensive content may
grab attention, it typically comes with a cost. One important highlight from the Miller case is that
states have their own rights to further restrict obscene materials, and so it would be pertinent to
research local statutes which will apply prior to publishing content which could be considered
obscene. As also reinforced by Miller, just because content contains nudity or indecency does not
automatically classify it as obscene (Moore, Murray & Youm, 2021). According to the FCC,
indecency regulations do not generally apply to the Internet and digital messages because they
are more difficult for children to access by nature (Southern New Hampshire University, 2023).
Overall, the most important consideration regarding obscene material and professional digital
communication is: how will it help connect with your intended audience?
Summary
Being obscene has a time and a place where it may be well received, and perhaps
even encouraged. Knowing the audience and carefully curating messages accordingly is an
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important skill for a digital communicator. Understanding the laws and regulations surrounding
obscenity will ensure that no lines are crossed without intention.
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References
Moore, R. L., Murray, M. D., & Youm, K. H. (2021). Media Law and Ethics (6th ed.). Taylor &
Francis. https://bookshelf.vitalsource.com/books/9781000439830
Southern New Hampshire University. (2023). Indecency and Obscenity: How Far Is Too Far?.
Module Overview - COM-530-Q4161 Law & Ethics 23TW4.
https://learn.snhu.edu/d2l/le/content/1293782/viewContent/23809213/View
