Battling Allegations of Using Mail to Distribute Obscene Materials

Being accused of mailing obscene materials can be scary; the law seems stacked against defendants, and even the definition of “obscenity” is murky. But with some context on key court cases, you can better understand the legal standards–and maybe even fight the charges.

What makes something legally “obscene”?

That’s the million dollar question! The Supreme Court has struggled with defining obscenity for decades. Their landmark 1957 case Roth v. United States established that obscenity is not protected by the First Amendment. But what qualifies as obscenity?

Roth set the first legal test: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” This opened the door to local community standards.

In the 1966 Ginzburg v. United States case, the Court said context matters too–if materials are marketed to appeal to people’s erotic interests, they’re more likely obscene.

The 1973 Miller v. California case established the current 3-part test:

1. Whether the average person, applying local community standards, would find that the work appeals to the prurient interest
2. Whether it depicts sexual conduct in a patently offensive way
3. Whether it lacks serious literary, artistic, political, or scientific value

This test gives a lot of power to local standards. Something judged obscene in a small religious town may be acceptable in a large coastal city. What a mess!

How are community standards applied online?

The Internet complicates things even further. With material viewable anywhere, whose “community standards” apply? At first, prosecutors tried applying standards of the most conservative communities.

But in 1997’s Reno v. ACLU case, the Supreme Court ruled this unconstitutional. They said the “community standards” clause only applies to transmission/distribution of obscenity, not the material itself. But standards for transmission are still disputed.

Some courts apply the defendant’s local community standards. Others aim for a “national standard” of what’s acceptable to the average American. But this raises concerns about rural areas imposing views on urban areas.

There have been calls to replace community standards with a more consistent baseline focused on harm, especially for mail and Internet obscenity. But so far, local standards persist.

What are some key defenses?

Given the vague obscenity standards, creative defenses can sometimes work:

• Free speech – Argue the material has artistic, scientific, or political value.
• Overbreadth – The law is so broad it violates the First Amendment.
• Selective prosecution – Argue you’re being singled out unfairly.
• Lack of intent – You didn’t realize the material’s nature.
• Unclear standards – Challenge which “community standards” apply.

But most obscenity defenses come down to arguing the material itself has merit and wasn’t purely designed to appeal to prurient interests. The stronger its artistic, scientific, or social value, the better the defense.

Famous obscenity cases

Looking at past rulings can provide guidance on winning obscenity cases:

• In Ginzburg v. United States, context like marketing materials showing intent to appeal to erotic interests was used against the defendant.
• In contrast, in Cohen v. California, a man’s jacket saying “Fuck the Draft” was ruled not obscene, given the political context.
• Miller v. California said serious artistic value can defeat obscenity charges.
• But in Pope v. Illinois, the Court said literary/artistic merit is judged by reasonable person standards, not just the creator’s intent.

So context and community standards matter, even if the creator had noble goals. The more questionable the marketing and distribution choices, the weaker the defense.

The bottom line

Obscenity laws remain frustratingly vague. But hopefully understanding key cases, defenses, and the role of “community standards” helps provide a roadmap. There are creative ways to argue for artistic merit. And highlighting good faith intentions can help too.

The legal standards depend heavily on context. But with smart legal arguments, and by avoiding shady marketing, defendants can show the material serves valuable purposes for society.