It is known that the debates concerning obscenity take a special place in the American society as they are conducted in social, legal and political spheres. A lot of federal laws andĀ other legal statutes have already been developed in order to define and control obscenity in our society. Nevertheless, this issue requires certain actions to be implemented by the governmental agencies in order to change current obscenity laws which are not strict enough.(Hall, 2009, p.58)
Nowadays, sexually explicit material can be found practically in all the fields of mass media. Of course, it has a rather positive impact on the US economy but it creates “an increasingly sexual society”¯. Large amounts of sexually explicit information can damage our society. The adults with concrete psychological problems connected with obscenity can become the offenders of the law.
This paper critiques the regulation of current obscenity laws and touches upon the issues which are closely connected with sexual explicit communication. It also discusses federal regulation which should control obscenity in a proper way.
THE MILLER TEST AND ITS ROLE IN DEFINING OBSCENITY
The Miller Test is a special test which is used by the US courts to define obscenity. It can be related to some expression or speech which is not protected by the First Amendment of the US Constitution and is illegal and prohibited.
It is known that this test was developed by the US Supreme Court in 1973, case Miller v. California. There are three major conditions in this test which evaluate the obscenity of the item. In case all the conditions are satisfied, the item will be considered obscene. They are the following ones:
- If any “average person”¯ who applies “contemporary community standards”¯ or moral norms will define the item discussed as the work of “the prurient interest”¯;
- if the item depicts some sexual conduct in an offensive way and this fact is proved by the state laws;
- If the item has no any scientific or political, literary or artistic value. (Hall, 2009, p.72)
The first two conditions are connected with the community standards which are different in different communities.
In other words, what is considered to be offensive in one community, may be not offensive in the other one. This is a debatable question. What are community standards? They are appropriate local norms of conduct which should be followed by all the members of this or that community. It is clear that less strict standards can provoke greater censorship in the community. That is why many critics of the Miller Test consider that the community standards are not an appropriate way to determine obscenity. Many critics of the Miller test consider that federal law is rather dubious when it concerns obscenity. According to the Miller test, some type of pornography even has artistic value, and some sexually explicit expressions have literary value. (There is no Such Thing as Obscenity, 1996, para.3)
The other important fact is connected with the First AmendmentĀ to the US Constitution which prohibits abridging of freedom of speech. Justice Anthony Kennedy wrote that “the speech must be protected from the government because speech is the beginning of thought”¯. However, it cannot be related to the sexually explicit communication which is considered to be offensive for some people. Of course, this fact should be taken into consideration. (There is no Such Thing as Obscenity, 1996, para.4)