I'm surprised at how many people don't know whether adult pornography is legal. I say adult pornography as opposed to child pornography because most people realize that child pornography is not legal. As to the legality of adult pornography, a lot of it is illegal.
Under the law, the pertinent legal term is obscenity. And, obscenity is illegal. In Miller, the U.S. Supreme Court defined obscenity as any work that meets the following three criteria:
1) The work appeals to the prurient (sexual) interest,
2) The work depicts or describes in a patently offensive way sexual conduct or excretory functions, and
3) The work lacks serious literary, artistic, political, and scientific value.
Under this standard, some pornography is not obscene while some pornography is obscene. For a simple example of pornography that is obscene, consider pornography that objectifies and humiliates women. Applying the Miller standard, it can reasonably be argued that pornography which objectifies women is obscene because (1) it appeals to the prurient interests, (2) the objectification demeans women and therefore depicts sexual conduct in an offensive way, and (3) the focus is not literary, artistic, political, or scientific but the focus is simply sexual.
When prosecution actually takes place, the courts readily find that the adult pornography being prosecuting is obscene. Currently, adult obscenity is prosecuted at the federal level by the Obscenity Prosecution Task Force which is housed in the Department of Justice. The task force, which has been operating since the Bush Administration, has not lost once in the hundreds of cases they've prosecuted.
Thus, the current legal standard as defined in Miller as well as contemporary court decisions illustrate that a lot of adult pornography is obscene and consequently illegal. While some adult pornography is legal, there is a lot of adult pornography that is not.
Trivia: Is Adult Pornography Legal?
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3 comments:
Wow! I wish more people knew about this. Thanks for sharing.
Oh come on, Thomas. You know the Miller test is almost impossible to apply. It relies on a shared sense of "community decency," and the internet community in which porn proliferates has a VERY low standard of decency, so it's a no-go there. The "prurient interest" clause actually does more harm than good, because lawyers very often say, "see these disgusting pictures of women being sawn in half with chain saws while in the throes of ecstasy? Is there any possible way a person could be turned on by this? Of course not! Therefore it must be artistic or literary, since it couldn't possibly be sexual!" and the producers get off scot-free. Or with "community decency," the lawyers just say, "look at how many similar sites there are! And look at how many people do Google searches for this sort of thing! Clearly, it's mainstream! It's accepted!"
Can you cite a single case where courts have found online pornography to be obscene, and it's been upheld by a higher court?
We live in a messed up world.
Amy,
Appellate courts have upheld convictions that have found adult, online pornography to be obscene. Just one example is United States v. Thomas, which was upheld by the Sixth Circuit. The adult pornography in this case was created in California but accessed in Tennessee. The court applied the community standard of Tennessee. I have not studied the doctrine of community standard extensively, but in this case at least, the community by which the standard is gauged is the community where the material is accessed.
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