Obscenity law aims to set legal boundaries for the use of images, writings, and speeches that individuals use to communicate with others. The U.S. legal system established obscenity laws to protect morality and prevent corruption of societal values. The regulations intend to prohibit offensive and derogative speech and communications that undermine the decency and integrity of the American community.
In the United States, obscenity laws are among the most controversial laws going, mainly because what is "obscene" is subject to various interpretations. Despite regularly changing over time, obscenity laws continue to trigger the full gamut of emotions about morality versus freedom of communication.
With the different interpretations of obscenity, obscenity laws were put in place to regulate the conduct of people. Therefore, obscenity laws are legal frameworks put in place to determine acceptable and unacceptable behavior in regards to visual, audio, or written communication.
Obscenity According to the U.S. Government
Despite the widespread controversy associated with obscenity laws, the U.S. government has not been able to devise a standard definition or identify categories of obscenity. The inefficacy boils down to the federal government's interpretation of the First Amendment as protecting some potentially obscene forms of communication.
According to Supreme Court precedents, some obscenity laws are constitutional if written, communicated, and applied correctly. The federal government, however, allows states to create appropriate obscenity laws to implement within their borders. Obscenity laws are not, therefore, uniform, as they differ from state to state depending on values and interpretation.
A Brief History of U.S. Obscenity Laws
To track the history of the federal government's struggle with obscenity laws, we need to go back to 1873, the era of the Comstock Act. That Act prohibited people from sending obscene material, abortive agents, and birth control through the U.S. mail.
The Comstock Act got repealed, as Americans became more liberal after the start of the 20th century. An era of rapid technological development led to increased cases of obscenity cases across the country.
In 1896, the Supreme Court adopted the Hicklin Test as a way to identify obscenity during the legal case of Rosen v the United States. Enforcement of the test would not last, though. By 1933, the federal government no longer recognized the Hicklin Test.
Federal Judge John Woolsey ruled that when evaluating obscenity, the court should consider three things. First, it must consider the entire work or communication, not just some passages taken out of context and, thus, misinterpreted. Second, it must consider the emotional effect of the work on the average person. And third, the court must base any obscenity ruling on contemporary societal standards.
In Roth v the United States, the Supreme Court deemed Hicklin Test inappropriate. The decision to render the Hicklin Test obsolete was because of heightened backing of the standards that Judge John Woolsey recommended.
Miller Test
The Miller Test, also known as the three-pronged obscenity test, is the official test that the Supreme Court uses in determining the extent of obscenity. If the Miller Test deems the product of a case to be obscene, the courts can prohibit such communication or work because the First Amendment doesn't protect it.
According to the Miller Test, something is obscene if it satisfies the following:
- The average person would find the work to be of prurient interest.
- The work describes or depicts explicit conduct that is against the applicable state or regional laws.
- The work lacks political, artistic, scientific, or literary value.
Per the Miller Test, a communication or image must meet all three of these conditions for it to be deemed obscene. The first two statements are based on specific community standards, while the third generally leans on a national standard.
Since its development in 1973, the Miller Test stood firmly as the official obscenity test by the Federal government. Thanks to the lack of uniformity in the interpretation of obscene laws in all each state, however, seemingly similar obscenity cases can produce very different outcomes. As a result, attorneys can offer guidance based on their jurisdiction rather than on federal regulations.
The use of the term 'average person' helps to avoid wrongful convictions due to the perspectives of the more sensitive people. Therefore, to press charges or seek defense in regards to obscenity, it is crucial to have a solid understanding of the specific regulations of your particular state.
Acts and Bodies Related to Obscenity Law
Obscenity laws are aimed mostly at protecting children and other vulnerable populations from unlawful exposure to potentially harmful content. As such, the Federal government set some strict regulations that are uniform nationwide, even while each state maintains its own obscenity law.
Children's Internet Protection Act (CIPA)
Enacted by Congress to protect children from exposure to crude content, CIPA has always been keen on setting laws and regulations that control the use of the internet and school libraries. The CIPA looks to ensure that all children get protection against viewing or reading potentially damaging salacious content while on the internet.
In the United States, obscenity laws are mostly meant to protect children from early exposure to potentially damaging adult sexual content.
Children's Online Privacy Protection Act (COPA)
COPA's primary role is to devise appropriate methods of protecting American children from harmful content circulating on the internet. Since its approval by Congress in 1998, COPA limits internet use and access for children. In fact, under COPA, it is a criminal offense for adults to allow children to access harmful content, whether knowingly or unknowingly.
Communications Decency Act (CDA)
The CDA aims to protect overall communication in the U.S. The act allows the government to summon violators to court and sets guidelines for decent and indecent communication. It helps protect minors and all members of society from indecent communication or broadcasting by limiting the freedom of creators.
Federal Communications Commission
The FCC regulates indecency, profanity, and obscenity in aired, published or produced content. The commission maintains guidelines about what times specific content is allowed to broadcast. The goal of this government authority is to protect minors from viewing inappropriate content by default.
As a regulator, the FCC is responsible for bringing violators of the stated regulations to justice. The FCC has the power to revoke licenses and issue fines. On most occasions, FCC actions tend to lead to more legal battles about obscenity.
Due to the relatively vague definition of obscenity, broadcasters often find themselves on the wrong side of the law by accident. The FCC is, for example, always keen to monitor the schedules and program rosters of broadcasters to ensure that obscene content does not air during the restricted hours.
The Challenge of Understanding Obscenity Laws
As we have already established, obscenity does not have a uniform definition. The societal standards of decency and morality differ from community to community and person to person. To put it in perspective, an insulting or offensive remark for one person might appear utterly acceptable to another party. Unlike most laws, which tend to stay in place for a long time, obscene laws are continuously evolving.
This reality means that obscenity advocates must be prepared to keep up with emerging trends in obscenity laws. What applied yesterday might not be inapplicable today. You can see how this makes obscenity laws among the most challenging but fulfilling practices for an attorney.
Practicing Obscenity Law
Practicing obscenity law can be both rewarding and demanding. You must stay on top of your game. A ruling made two years ago might not be applicable months or years later, as societal trends continue to change. With this in mind, obscenity lawyers must maintain a deep understanding of the functioning and values of a particular community and the country.
As an obscenity lawyer, it is impossible to be successful in defending a client or making accusations without adequate information about the communal or state values. What might be acceptable in California, for example, might be viewed as a taboo in Utah. As such, it is crucial for advocates practicing obscenity law to keep their eyes and minds peeled on the tiniest of details regarding acceptable and unacceptable communal standards.
Prosecution lawyers must be prepared to present evidence to prove that the work in question is obscene. To launch a successful claim against an accused party, the prosecutor must prove that the defendant defied the stipulated obscenity laws in the state.
Similarly, the defense team must counter the claims, arguing that the work in question does not defy or go against acceptable obscenity standards. As such, both the prosecutor and defense attorney must prove fault, or lack thereof, based on community guidelines.
Why be an Obscenity Lawyer?
As a defense obscenity attorney, your primary role will be to defend your clients' constitutional rights per the First Amendment. You will be required to find language and precedent to argue that your client's activities do not, in any way, undermine morality or decency standards.
Defense lawyers must have detailed knowledge about the allocations on obscenity made in the First Amendment. They will be required to prove that their client did not go beyond the allocations of freedom and creativity, which are allowed to a certain extent.
If you are passionate about defending the artistic rights of people, you might want to consider venturing into the highly demanding yet lucrative career of obscenity law.
You could also consider specializing in obscenity law if you enjoy protecting morality and want to safeguard the values of your family, your community, and your country. Prosecution lawyers usually get hired by federal institutions and organizations the operate on an obligation to preserve morality, especially for children and other vulnerable parties.
In short, obscenity law might be your cup tea if you are passionate about helping the government or whistleblowers in maintaining morality in your jurisdiction.
Must-Have Skills for an Obscenity Lawyer
If you plan to practice obscenity law, there are some must-have skills you'll need to develop:
Logical and Analytical reasoning
As an obscenity lawyer, you will need to have exemplary logical and analytical skills. Since obscenity cases are usually quite complicated, your ability to reason logically and analytically will be a plus.
Obscenity lawyers are required to spend extended time reviewing and compiling vast volumes of legal data. This level of research and analysis means that an obscenity attorney must be able to review complicated documents, make inferences, and draw relevant connections between cases.
Legal Research
Regardless of your specialization, any reputable lawyer will have impeccable legal research skills. As an obscenity lawyer, you must research the extensive case laws, regulations, judicial opinions, precedents, and statues until you know them like the back of your hand.
A professional obscenity lawyer must also master the art of locating and using legal authority. That talent includes deciphering what research you find on the internet is accurate and what is better left to Snopes.
Oral Communication
Obscenity lawyers must possess ingenious oral-communication skills to convince a jury or make meaningful claims during prosecution or defense. You must be a confident speaker who is not shy to express evidence, regardless of its possibly-obscene nature.
If you want to become an obscenity lawyer, you must master relevant legal terminology, and know when to speak up and when to listen. Excellent communication entails both hearing and responding.
Written Communication
You won't win an obscenity case without excellent writing skills. In fact, you will need to employ the mechanical and stylistic written-communication tools every day. You'll also need to master citations of other rulings and apply the outcomes to your case at hand.
Client Service
A stable client-advocate relationship is crucial to the success of any legal case. Your work as an obscenity lawyer will be to deliver the best legal assistance based to suit each client's specific situation. Obscenity cases can be challenging, if not impossible, to win if an attorney does not take time to understand and trust a client's motives, intentions, and attitude.
Flexibility
Obscenity cases are virtually always intricate, as lawyers sling elaborate allegations and moral jabs against one another. What's more, what is accepted in one state may be taboo in another. You will have to be flexible enough to adapt and move with the flow of case precedent. Be open to expanding on every argument based on the laws associated with the state from which a particular case history is derived.
Understanding of Past Cases
Having a rich knowledge of past rulings is essential for an obscenity attorney. You must understand precisely what influenced the outcome of previous obscenity cases and how. You must also familiarize yourself with obscenity-law history, including the use of the Miller Test.
The Relevance of an Obscenity Lawyer
As times and technology continuously change and evolve, new communications avenues will continue to emerge. The age of the internet has made it increasingly difficult for the Supreme Court to define and rule on obscenity, which increases the possibilities of legal action regarding potentially sensitive or provocative content.
The wide berth of morality interpretations ensures that legal battles about obscenity to be ongoing for the foreseeable future. With that in mind, the services of obscenity lawyers will be in growing demand moving forward.
An obscenity lawyer must always remain on top of the latest developments regarding broadcasting, internet images, and other potentially illegal content. The ambiguous nature of obscenity forges an attorney's life into endless minutiae.
With bodies such as FCC on high alert about broadcasting, obscenity lawyers aren't likely to have difficulty remaining employed for a long time to come.
Final Notes
Obscenity law may be one of the most exciting and dynamic forms of law that a lawyer can practice. The ambiguity of the term 'obscene' makes the practice intriguing — especially for attorneys who love blending philosophical arguments and facts.
Because obscenity laws vary from state to state, you must remain knowledgeable and flexible enough to align your arguments to suit each impending case to a tee. A good understanding of precedents nationwide will help you carve out your best argument and improve your chances of winning a favorable verdict.
Being an obscenity attorney will, no doubt, be fulfilling if your goals involve defending creativity or arguing against moral degradation in your community or state. Whichever side you're on, be prepared to focus predominantly on communal values.
If you work as a defense lawyer, your role will involve proving that your client did not act outside society's acceptable moral standards or the legal standards in your state. If you choose to be a prosecutor, on the other hand, you will represent organizations like the Federal Communication Commission in presenting measures of obscenity.
In addition to the tremendous amount of money you can make by representing large broadcasting companies or corporations, for example, obscenity lawyers stand to mark their role in history. Winning an obscenity case will write your name in the legal publications from which other lawyers will learn for decades to come.
