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Obscenity/Pornography Laws

Does the First Amendment protect pornography?

Why does the state have the right to prohibit the distribution of pornography?

Does the state have the right to tell me what I can and can’t look at in my own home?

Why is pornography available if it is illegal?

What are Utah’s laws that apply to pornography?

What are the federal laws that apply to pornography?

Where can I find out about changes to the law?

Are Utah’s laws stricter than other states?

What is the difference between pornography and obscenity?

Is some pornography illegal to possess?

What is child pornography?

Re: Distributing Pornographic Material

How do you define pornography?

Don’t communities have the right to decide what material is pornographic?

Filing a complaint about distribution of pornography

Links To Additional Information

 

Does the First Amendment protect pornography?

 

No, it does not. Pornography – “obscenity” in many states – is not protected by the First Amendment. The First Amendment states “Congress shall make no law . . . abridging the freedom of speech.” Although the Constitution protects freedom of speech, the Supreme Court of the United States has said the First Amendment has never been treated as an absolute. Some speech can be completely prohibited and some can be regulated.

 

In Roth v. United States, 354 U.S. 476 (1957), the court stated, “We hold that obscenity is not within the area of constitutionally protected speech.”

In Miller v. California, 413 U.S. 15 (1973), the court stated “This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment.”

The Supreme Court has stated that the First Amendment does not protect consumer fraud, conspiracy, false advertising, sedition, incitement, perjury, bribery, libel, slander, child pornography, or distribution of pornography. For example, falsely shouting “fire” in a theater is not protected speech.

 

 

Why does the state have the right to prohibit the distribution of pornography?

 

Supreme Court Chief Justice Warren stated there is a “right of the Nation and of the states to maintain a decent society….“ In Paris Adult Theater I v. Slaton, 413 U.S. 49 (1973), the court outlined some of the state interests protected by enforcing laws against pornography. “In particular we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even if it is feasible to enforce effective safeguards against exposure to juveniles and to passers-by…. These include the interest of the public in the quality of life and total community environment, the tone of commerce in the great city centers, and possibly, the public safety itself.” In Roth v. United States, 354 U.S. 476 (1957), the court said the state’s social interest in order and morality outweighed whatever slight social value there might be to obscenity.

Does the state have the right to tell me what I can and can’t look at in my own home?

 

No, they don’t, unless it involves children. The Supreme Court in Stanley v. Georgia, 394 U.S. 557 (1969), held that in a person’s home “the mere private possession of obscene matter cannot constitutionally be made a crime.” The Court went on to say, “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” But the government does have the right to prohibit possession of certain items, such as child pornography. They also have the right to prohibit the distribution of certain items, such as child pornography, pornography, and material harmful to minors.

 

You have the right to possess hard-core pornography/obscenity for your own use in your home.

You do not have the right to sell or show hard-core pornography to others.

You do not have the right to possess child pornography.

You do not have the right to show or give material to a minor that is harmful for a minor.

 

 

Why is pornography available if it is illegal?

 

Many people believe material must be legal if it is available in their community such as at a store, on television or on the radio. This belief is false. The mere fact that the material is available does not mean it is legal, but law enforcement cannot seize suspected pornographic material without a court order.

The Law Enforcement and Prosecutors’ Point of View

Because pornography is based on a “community standard,” many prosecutors and law enforcement agencies do not investigate possible pornography issues unless they get a complaint. They interpret silence (the lack of complaints) as community approval. Complaints let them know that the citizens in the community are not happy with what is being distributed in their community.

A Citizens’ Point of View

On the other hand, citizens tend to believe that prosecutors and law enforcement know what most citizens find offensive and don’t think they should have to complain.

Additional Factors Adding to the Dilemma

Citizens tend to stay away from places selling material they find offensive. They don’t order the cable channels that may offend them. They don’t call the dial-a-porn numbers if they find this practice offensive. Because they are not accessing any of this material, they are not complaining about it even though they would be offended by it if they saw it. This creates an unfortunate dilemma that results in a lack of enforcement of pornography laws.

Citizen complaints are crucial for prosecutions to occur.

 

 

What are Utah’s laws that apply to pornography?

 

The following is a list of Utah state laws that apply to pornography and some related issues:

 

 

a. Distributing Pornographic Material (for additional information on this issue click here).

b. Dealing in Material Harmful to a Minor (for additional information on this issue click here).

c. Indecent Public Displays, for additional information on this issue click here.

d. Sexual Exploitation of a Minor (Child Pornography)

e. Enticing a Minor Over the Internet (i.e. an adult asks a minor in a chat room if they would have sex with them.)

f. Distribution of Pornographic Material through Cable Television

g. Racketeering Enterprises (i.e. committing a pattern of unlawful acts which can include pornography crimes)

h. Privacy Violation (i.e. Video taping someone in their home without their knowledge.)

i. Unsolicited Commercial and Sexually Explicit E-mail, for additional information on this issue click here.

j. Computer Crimes (i.e. someone gains unauthorized access to your computer and alters or damages your system.)

 

 

What are the federal laws that apply to pornography?

 

The following is a list of federal laws that apply to pornography and some related issues: (remember, federal laws apply in all states)

 

 

a.18 USC § 1460 – Possession with intent to sell, and sale of obscene matter on federal property

b.18 USC § 1461 – Mailing obscene or crime-inciting matter

c.18 USC § 1462 – Importation or transportation of obscene matter

d.18 USC § 1463 – Mailing indecent matter on wrappers or envelopes

e.18 USC § 1464 – Broadcasting obscene language

f. 18 USC § 1465 – Transportation of obscene matters for sale or distribution

g.18 USC § 1466 – Engaging in the business of selling or transferring obscene matter

h.18 USC § 1468 – Distributing obscene material by cable or subscription television

i. 18 USC § 1470 – Transfer of Obscene Material to Minors

j.18 USC § 2252a – Child Pornography

k.18 USC § 2260 – Production of Sexually Explicit Depictions of a Minor for Importation into the United States

 

For additional information on the federal laws, see the United States Department of Justice, Child Exploitation and Obscenity Section’s Web site at www.usdoj.gov/criminal/ceos

 

Where can I find out about changes to the law?

 

Current laws can be found on the Utah Legislature Web page, www.le.state.ut.us by clicking on the button “Utah Code and Constitution.” To find proposals for a new law or changes to the current laws, click on “Bills.” Go to the year and do a subject search.

 

You can find all of the bills being considered by the United States Congress at http://thomas.loc.gov by doing a word search.

 

To find out about local laws being considered, check with your city and county clerks.

 

Are Utah’s laws stricter than other states?

 

No. Most obscenity and pornography laws are very similar. They are based on the Supreme Court case Miller v. California. Most states have laws prohibiting the distribution of pornography. To view the laws in other states, go to www.moralityinmedia.org/nolc, and then click on the button entitled “Federal and State Obscenity Statutes.” The distribution laws are applied differently around the country because the law is based on a community standard.

 

What is the difference between pornography and obscenity?

 

Obscenity is the legal term used by the Supreme Court of the United States and the federal law for illegal sexually explicit material. Utah uses the legal term pornography for the same illegal sexually explicit material. The word pornography is also used as a general term for all sexual material, both legal and illegal. This general use of the word pornography can create some confusion for Utah citizens reading material from other states.

 

Is some pornography illegal to possess?

 

Yes. It is illegal to possess child pornography. It is considered contraband and the police have the right to seize it any time they find it in someone’s possession. This includes downloading a picture or video from the Internet or from file sharing. It is also illegal to possess other pornography if you possess it with the intent to distribute it.

 

What is child pornography?

 

Child pornography is a visual depiction of a child (a person under 18) engaged in actual or simulated sexual conduct. Sexual conduct includes: a lascivious exhibition of the genitals or pubic area; nudity or partial nudity for the purpose of sexual arousal; touching the genitals, pubic area, buttocks or female breast; or explicit representation of defecation or urination. It is not illegal to possess a picture of a nude child, such as a picture of your baby being bathed. However, if the picture focuses on the child’s genitals or the child is posed in a sexual way, giving the impression that the intent of the picture is for sexual arousal, the picture is illegal.

 

In addition to the state law, Federal law 18 U.S.C. § 2252A makes child pornography illegal. In 1996, the law was amended so that child pornography included visual depictions that “appears to be” or “conveys the impression” of a minor engaging in sexually explicit conduct. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court struck down the “appears to be” and “conveys the impression” portions of the law.

 

IT IS ILLEGAL TO POSSESS CHILD PORNOGRAPHY.

DO NOT DOWNLOAD IT.

DO NOT SAVE IT ON YOUR COMPUTER.

 

If you find child pornography anywhere other than on the Internet, report it to your local police department immediately. If you find it on the Internet, report it to the following agencies:

 

Utah Internet Crimes Against Children Task Force
Phone: 801-596-0907 or (800) 932-0190
E-mail: utahicac@hotmail.com

 

U.S. Customs Service

U.S. Customs Child Exploitation Unit states, “The presence of child pornography on the INTERNET is a disturbing and growing phenomenon. With your help we hope to reverse this trend and eliminate this type of material from the information superhighway and bring the people responsible for its possession, production and distribution to justice.” To file a complaint about a Web site you believe contains child pornography, or a chat room or an individual you suspect is involved in child pornography, call toll free 1-800-BE-ALERT or notify Cybertipline at the National Center for Missing and Exploited Children: www.missingkids.com/cybertip. For additional information about U.S. Customs Child Exploitation Unit go to www.customs.gov/enforcem/child.htm

 

Re: Distributing Pornographic Material

 

In United States v. Reidel, 402 U.S. 351 (1971), a man was charged with distributing pornography. He argued it had to be legal to distribute pornography because the Supreme Court in Stanley v. Georgia, 394 U.S. 557 (1969) said it was legal to possess pornography. The Supreme Court in Reidel said “The focus of this language [Stanley] was on freedom of mind and thought and on the privacy of one’s home. It does not require that we fashion or recognize a constitutional right in people like Reidel to distribute or sell obscene materials.” The Supreme Court has continually stated there is no constitutional right to distribute pornographic materials.

 

It is illegal to distribute pornographic material and child pornography.

It is illegal to transport pornographic material and child pornography.

It is illegal to transmit pornographic material and child pornography

It is illegal to produce child pornography.

It is illegal to produce pornographic material with intent to distribute.

It is illegal to distribute material harmful to a minor to minors.

It is illegal to broadcast pornographic material over radio, television, cable and satellite systems.

It is illegal to mail pornographic material.

 

Distribution means conveying the material to another person. This can be done by giving it, showing it, or selling it. All methods of conveyance are illegal, i.e. handing it to someone, mailing it, e-mailing it, putting it on a web site, broadcasting it on television, satellite, or radio, over the telephone line, downloading it, uploading it and any other possible way of transferring information.

 

 

How do you define pornography?

 

People often say that it is impossible to define pornography or that there isn’t a clear definition. They quote Justice Stewart’s infamous words in his concurring opinion in Jacobellis v. Ohio, 378 US 184 (1964), “I know it when I see it.” However, to put his words in context, he said that in writing his opinion for the Jacobellis case, he did not need to “attempt to further define the kinds of material” classified as hard-core pornography.

 

In 1973, the Supreme Court did clarify the definition of pornography/obscenity. InMiller v. California, 413 U.S. 15 (1973), the court defined it by setting up the following three-part test:

 

Would the average person, applying contemporary community standards find that the material:

when taken as a whole,

appeals to a prurient interest in sex (i.e., an erotic, lascivious, degrading, unhealthy, morbid interest)?

Would the average person find the material depicts or describes:

sexual conduct (i.e., ultimate sex acts, normal or perverted, actual or simulated, lewd exhibition of the genitals, excretory functions, sadism, and masochism)

in a patently offensive way?

AND

Would a reasonable person find the material:

as a whole,

lacks serious literary, artistic, political or scientific value?

 

Pornography is sexual material that leaves nothing to the imagination. The material is obsessed with sex and includes close-up shots of the actual or simulated sex acts. In Roth the court said prurient means going “substantially beyond customary limits of candor in description or representation of such matters.” If all three parts of the above test are answered with a “yes” then the material is pornographic and illegal for distribution.

 

In anticipation of people claiming there was no clear definition of pornography, the Miller court said:

 

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.

 

 

Don’t communities have the right to decide what material is pornographic?

 

No. A judge or jury decides what material is pornographic. The judge or jury is required to use the “community standards” as a guideline in deciding what an average person in that community would believe is pornographic material. This standard is set by what is accepted in the community as a whole, “young and old, educated and uneducated, the religious and irreligious.” Each citizen contributes to that standard by the books, magazines, and movies they buy at the store, the movies they go to at the theater, and the shows they watch on television. Your actions make a difference.

 

Filing a complaint about distribution of pornography.

 

If you see pornography being distributed, report it to your local police department and city attorney immediately. Tell them you want the distributor prosecuted if there is probable cause to file charges and ask them to let you know what their decision is after their investigation. To help you file this complaint, please use our complaint forms. Simply click on the form you wish to use.

 

Local Pornography Complaint Form in PDF

Federal Obscenity Complaint Form

Pornography on the Internet or Spam

 

“But no amount of ‘fatigue’ should lead us to adopt a convenient ‘institutional’ rationale—an absolutist, ‘anything goes’ view of the First Amendment—because it will lighten our burdens.” Miller

 

 

Links To Additional Information

 

Morality In Media www.moralityinmedia.org

 

Provides information on the federal obscenity laws and how to enforce the law. It also has a link to the National Obscenity Law Center, which provides many legal resources.

 

United States Department of Justice, Child Exploitation and Obscenity Section

www.usdoj.gov/criminal/ceos

 

Lists the federal laws and discusses some of the current cases.

 

Many Utah cities and counties have their laws available on their web pages. To access a city or county web page, go to www.utah.gov. Then go to the bottom of the page where you will see two boxes. One says “Find a county in Utah,” the other says “Find a city in Utah.” Click on the city or county you are looking for information about.

 

The Utah Attorney General’s Office exercises no control over the content of any other web site. We are not responsible for the views, accuracy, legality, copyright or trademark compliance of material on any other web site.