XXXLAW J. D. Obenberger and Associates, Attorneys and Counselors at Law

 

Cases and Statutes on Obscenity

 

The contents of this page, indeed of this entire site, are very much under construction and will remain so until the site contains enough material to become a significant resource to all who seek information about the protections provided to free expression under the First Amendment to the United States Constitution.

This endeavor begins with three cases, two from the United States Supreme Court, and one from the Illinois Appellate Court, Fifth District.

Miller v. California (1973) is very much the seminal case from which contemporary obscenity law has grown, articulating its famous three part "community standards" test which functions to explain the limits on what expression may be outlawed by government as obscene. Miller was decided in an era before the contemporary internet was conceived, an invention which makes the local community largely irrelevent to the reception and dissemination of images and text. It was decided in an era before an internet publisher had the ability to place a publication on a server to serve a world wide audience without any particular knowledge as to where the message was received. The question remains whether it is constitutionally permissible for a local government to prosecute a remote webmaster for violation of its local standards. The practical result of permitting such a prosecution may be to impose the standards of the most restrictive communities on the nation and the wired world. It may also be unreasonable and constitutionally impermissible to require a webmaster to acquaint himself and comply with the contemporary community standards of every place where his content may be viewed, and to face criminal conviction if he fails to do so. In time, all of these questions will be adressed by the Supreme Court, and Miller is the place where the inquiry will begin.

Brocket v. Spokane Arcades (1985) reaches the meaning of the word "prurient" in the Miller test and stands for the proposition that material, even explicit material, that stimulates a normal appetite in eroticism cannot be proscribed as criminal under the First Amendment.

Belleville v. Family Video is a 2001 case decided by the Illinois Appellate Court reversing a conviction for obscenity arising from the rental of videotapes in the East St. Lous area. The Appellate Court remanded the matter for a new trial because the trial judge improperly excluded evidence of the availabilty of simarly explicit sexual materials at retail establishments in the geographic area, evidence of availability being some evidence of community acceptance of the expressive materials.

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