Wednesday, April 17, 2013

O is for Obscenity

I had another O topic figured out but in writing my other blog post I completely forgot the one I'd figured out for this blog. So, instead I'm going to do a slightly obscure (ooo another O word) one. The first time I'd faced a class about law was back when I was 16, so I have a specific view when it comes to obscenity based on taking a Constitutional Law class at Stanford as part of a program called Junior Statesmen of America. This is also all based on US law and the opinion by the US Supreme Court that created the Miller Test.


This is a famous quote because it was used at one point. Yep, at one point how one defined obscenity was based off a similar opinion that they knew it when they saw it. Which meant to determine whether something was obscene or not meant they had to view the item. Sounds strange now, but is no longer the real standard due to the case of Miller v California. I won't ramble on about the case because I don't want to bore anyone. If you want to see more about the court case, check here: Miller Case Brief.

The reason I bring it up as also being a writer of romance/erotica, running an erotic contest and working for a newsletter on writing.com, I have come upon the topic a number of times. Usually it's an issue of erotic versus pornography. That conversation makes me want to go into a big rant about law. Feel bad for those that have had to listen to me, lol. Because to me really it's not an issue of erotica versus pornography because I don't even use the p word in the discussion. Because it's not whether a story is one or the other, the issue in the legal sense is whether the item is erotic or obscene. Why is that the issue?

Because, according to the Court and my years of classes studying the court case, it's a matter of whether the item in question is obscene or erotic because the first amendment protects erotic works but obscenity is not protected. They never ask if it's pornography or not. The question will be is it obscene or not.

It's pretty easy to make it through the Miller test. The one that all fall under is the 1st part where it has to involve the prurient interest. Basically that asks if it is sexual or not though the patently offensive part isn't as easy to figure out. However, what helps us writers is the list of acceptable reasons. This is where it says that if the work in question is artistic, scientific, political or literary, then it's erotic. If it's not one of those then it that is another mark towards obscene. The final feature has to do with community standards. Well, maybe not in that order exactly but you get the idea. But besides that point, if it fails the test then it's obscene and not protected speech. But erotic is protected under the First Amendment.

The interesting part I think, is the original content in question trying to defend itself as to whether it was acceptable or not, Miller, lost. The situation was considered obscene because what they did wrong was something simple. They were sending adult material to anybody, a mass mailing attempt of advertisement, which meant people who didn't want the material received it. Yeah, minor mistake on that part. Yet, the case helped work to define the legal standards for obscenity. Though I wonder how those email spams work. Hmm...


Bored yet?
Ever worry about writing and obscenity?

6 comments:

Stina Lindenblatt said...

I've never considered erotica obscene. But then I'm too focused on the story to think about anything else. What it really comes down to is personal taste.

Tessa Conte said...

Interesting. I know a british case where they argued something (in this case, magazines) wasn't obscene because it wouldn't cause offence because, well, if you looked at them (or rather that particular, clearly marked 'adult' shelf) then it you obviously weren't the type to be offended. There was an argument about corrupting the public, too, but I won't bore you with that...

Laura Marcella said...

Hello, Dawn! I don't think I write anything obscene, but the Banned Books List proves that someone somewhere will see things as obscene no matter what. So who knows? Obscenity is often so subjective.

Happy A to Z-ing! from Laura Marcella @ Wavy Lines

Luana Krause said...

Personally, I don't write "obscenity", but I have no problem reading it if it works with the story and characters. There are some books that are too graphic for me to handle, and not necessarily obscene. For example, anything about child abuse really bothers me, as well as rape and torture.

Robin said...

In terms of books, I think if people know what they are getting and they still buy it, then it shouldn't be considered obscene. Now, if something is falsely marketed, a case could be made. However, the beauty of a book is that you can always close it. I think we have all bought BAD books (not necessarily OBSCENE, just poorly written) and we all had the option of stopping reading at any time. That is our God-given right as people. God Bless America.

Denise Covey said...

I can see where people get caught up in the difference between porn and erotica. I'd be afraid to write either!