August 11, 2016

VIDEO: Is Distributing Pornography Illegal? Obscenity Law Explained

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Dani Pinter from the National Center on Sexual Exploitation’s Law Center explains obscenity law and it’s implications for Internet pornography today.

All speech is presumptively protected under the First Amendment. However, “obscene pornography” is not.

There are large categories of speech that are unprotected, for example child pornography, blackmail, or defamation. Obscenity falls into this category of criminal speech.

That is why federal law is acting within the bounds of the First Amendment in its law that prohibits the distribution of obscene adult pornography on the Internet, on cable/satellite TV, on hotel/motel TV, in retail shops, through the mail, and by common carrier.

So what is obscenity?

Obscenity is determined in a court of law by a jury on a case by case basis.

In Miller v. California, the Supreme Court established a three-pronged test for determining whether a “work” (i.e., material or a performance) is obscene and therefore unprotected by the First Amendment.

To be obscene, a judge and/or a jury must determine:

First, that the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

AND second, that the work depicts or describes in a patently offensive way, as measured by contemporary community standards, “hardcore” sexual conduct specifically defined by the applicable law;

AND third, that a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political and scientific value.

Hardcore pornography today typically meets these criteria, and is therefore most likely illegal, or at least open to prosecution by the Department of Justice.

The U.S. Supreme Court has repeatedly upheld obscenity laws against First Amendment challenges, explaining that obscenity is not protected speech. Even so, the U.S. Department of Justice (DOJ) refuses to enforce existing federal obscenity laws.

All girls, boys, women, and men have a natural human dignity and thus a right to live lives free from sexual exploitation. All pornography is degrading, dehumanizing, exploitive, and a violation of this right.

Our nation is now suffering from an emerging public health crisis fueled by the widespread distribution of adult, hardcore pornography, and the Department of Justice bears a great burden of responsibility for this crisis.

Dani Pinter

Executive Director of the Law Center

Dani Pinter joined the NCOSE team as Director of the Law Center in August of 2015. Dani has a passion for human rights issues especially those affecting women and children. This passion is what led to her decision to attend law school. Dani received the Wilberforce Award, a full academic scholarship for those with human rights interests, to attend Regent University School of Law. While at Regent, Dani was in the Honors Program, a member of the Moot Court Board, the Journal of Global Justice and Public Policy, and the Student Bar Association. During her studies, Dani interned with the American Center for Law and Justice (ACLJ) and the Florida Attorney General’s Office of Statewide Prosecution.i

Prior to law school Dani worked as a government relations intern for multiple DC policy organizations and graduated from the University of Central Florida with dual degrees in Psychology and Marketing.

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