New Jersey’s Public Obscenity Law – What You Need to Know

New Jersey has a law that makes it illegal to publicly share obscene material. This law is called “public communication of obscenity” and is found in Section 2C:34-4 of New Jersey’s criminal code[1]. Here’s what you need to know about this law, what it means, and the penalties if you break it.

What Counts as Obscene Material?

The law defines obscene material as anything that:

• Lacks serious artistic, political, scientific or literary value
• Mainly appeals to people’s interest in sex
• Offends community standards on what’s decent

This is decided on a case-by-case basis. But it usually covers things like pornography, erotica, and other super sexual content.

What Does “Publicly Communicate” Mean?

The law bans obscene material when it’s “publicly communicated.” This means[4]:

• Displaying, posting, or exhibiting obscene material where the public can see it
• Giving away obscene material in public
• Describing obscene material out loud in public

So you can’t show dirty videos on a big screen in the park, hand out porn flyers on the street, or graphically describe obscene acts through a megaphone. Even if it’s in front of a small group, it counts as public.

What Are the Penalties?

Breaking this law is a felony crime. The penalties get more severe depending on exactly what you did[1]:

• 4th Degree Felony: Up to 18 months in prison and $10,000 in fines. This is for displaying, distributing, or exhibiting obscene material in public.
• 3rd Degree Felony: Up to 5 years in prison and $15,000 in fines. This is for admitting the public to an obscene performance.
• 2nd Degree Felony: Up to 10 years in prison and $150,000 in fines. This is for promoting obscene material, including making it, transporting it, or financing it.

You may also have to register as a sex offender.

What Are Defenses Against This Charge?

There are a few defenses a good lawyer may use to fight public obscenity charges, like[3]:

• The material wasn’t really obscene. Your lawyer can argue the content had artistic, scientific, or political value after all.
• You didn’t know it was obscene. You have to know the material was obscene to be guilty.
• It doesn’t violate community standards. Your lawyer may argue the local community wouldn’t actually find the material indecent.
• Free speech. The material may be protected speech under the First Amendment.
• Illegal search. If police illegally seized the obscene material, it may get thrown out of court.

When Can You Be Charged Federally?

New Jersey isn’t the only place with obscenity laws. There’s also a federal obscenity law banning distribution of obscene material[2].

You can face federal charges if you:

• Mail or ship obscene material across state lines
• Import/export obscene material
• Broadcast obscene content on TV, radio, cable, etc.

Penalties can include 5 years in federal prison and fines over $250,000.

Recent Obscenity Cases in New Jersey

Obscenity charges aren’t super common, but they do happen in New Jersey. Here are some recent cases:

• In 2020, a man was charged for having obscene images of child sexual abuse on his phone[5].
• In 2015, the owner of a lingerie store was charged for knowingly selling obscene materials.
• In 2012, a trio of DJs called “The Jersey Guys” got in trouble for talking about obscene sex acts on their radio show.

When Is Obscenity Protected By Free Speech?

Obscenity laws have to balance between protecting community standards and allowing free speech. It gets tricky!

Some obscenity is still protected under the First Amendment in certain contexts, like:

• In your own home. You can view obscene material privately at home.
• Art. Obscenity laws usually make exceptions for things like art exhibits.
• Academics. Discussing obscenity may be protected for academic purposes.
• Between adults. Sharing obscenity just between consenting adults may be legal.

But it’s risky to assume you’re protected without talking to a lawyer. Get legal advice before publicly displaying anything potentially obscene.

How to Avoid Obscenity Charges

To stay safe from obscenity charges:

• Don’t publicly share pornography, erotica, or anything super sexually explicit. Keep it private.
• If you run a store, carefully review your inventory for obscene materials.
• Don’t describe graphic sexual acts out loud in public spaces.
• If asked by police, don’t consent to any searches that could reveal obscene material.
• Hire a criminal defense lawyer if you’re facing obscenity allegations.

Obscenity laws are complex. But in general, be cautious about publicly sharing sexual content in New Jersey. Distributing obscenity can lead to serious criminal penalties here.

References

[1] https://www.newjerseycriminallawattorney.com/sex-crimes/public-display-or-communication-of-obscenity/

[2] https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-obscenity

[3] https://www.federallawyers.com/criminal-defense/nj-public-display-or-communication-of-obscenity/

[4] https://codes.findlaw.com/nj/title-2c-the-new-jersey-code-of-criminal-justice/nj-st-sect-2c-34-4.html

[5] https://www.app.com/story/news/crime/jersey-mayhem/2020/09/04/toms-river-man-had-child-porn-phone-prosecutor-says/5710174002/