Dear YNOT: An Answer to a Question About Obscenity

Dear ynot,

I am a newbie and I have just read your stuff for the first time. It will be a daily habit of mine.

One of the articles said to ask, so I am asking.

Would the terms "fresh young orientals" and "see them before they get any older" be considered obscene? The content is predominantly Japanese series of legal aged girls posing nude and clothed. No hardcore at all but definitely can see their genitals. It is all what is generally what is known as idols or (what an older guy like me remembers) pin-ups. The pages are to be submitted for TGP's as upsell for a site that has much harder content.

I thank you in advance for your help, concern, professionalism and attention to detail.

Best Regards,
David

 

Dear Newbie David,

I am happy to be answering your question from YNOT's emergency contingency command center here in Chicago, a place that stands in readiness should tsunami tidal waves or earthquakes or terrorist attacks ever devastate the headquarters of the porn world and the rest of Southern California. No matter what, the news about the adult internet will go on!

And even from here in the heart of America's Heartland, from a place in the very shadow of Holy Name Cathedral, your question suggests way too much anxiety and concern for your own good. Take a deep breath. Start chanting your mantra: "YYYYNOT!" Find peace and discover consolation. We're talking about pin-up pictures here, right? Pin up pictures that show the private parts of female models? These are the kinds of pictures that show the things routinely featured in Penthouse and Playboy since about 1972 and, as a result, are sold in convenience stores all though the land, and by far the only time they create strong likelihood of trouble with the law is when they are sold, offered, or shown to minors.

Freedom of expression in our country comes with the protection of the strongest guarantee known to the law, the First Amendment to our Constitution, the headliner of our Bill of Rights.

No state has to prohibit or punish material as obscene. But if a state attempts to do so by passing a criminal obscenity statute, the Supreme Court in Miller v. California told us in 1973 that it can only punish defendants for the publication of sexually expressive works if the answer to all three of these following questions is "yes":

  1. whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest,
  2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
  3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

On the other hand, if what the image excites is a healthy interest in sex, a normal lust, it cannot be obscene under the 1985 reasoning of the Supreme Court in Brocket v. Spokane Arcades.

So, first we look to the statute in question. Some statutes do purport to include "lewd exhibition" of genitals among the kinds of specified sexual and excretory conduct that are targeted by the statute.. But that only opens a door which, it seems to me, gets closed pretty quickly.

In order for a work to be obscene, a work must appeal to a "prurient interest" in sex, when taken as whole, in light of contemporary community standards; The word "prurient"means morbid (diseased) or shameful. It seems to me that an attractive pinup picture showing genitalia would stimulate a pretty normal interest in sex and would not be obscene for that reason alone. And, given the prevalence of erotic images of female genitalia in publications widely sold just about everywhere, and found on cable tv systems throughout the land, without significant criminal prosecution anywhere, I think that there are comparatively few places in America where a jury is likely to find that such a poster is patently offensive.

So much for the pictures.

As for the words that you directly ask about, "fresh young orientals" and "see them before they get any older", it is also just about inconceivable that they could be the subject of a successful obscenity prosecution in any American jurisdiction. Of course, the phrases would have to be considered along with all of the other material that accompanies them, text, graphics, and images, because the law of obscenity deals with "works as a whole" and not with things taken in isolation. It has been decades since nonpictoral matter has commonly been the target of obscenity prosecution, and even in the fifties and sixties, the prosecuted text was far more raw than these words are.

No lawyer can ever guarantee that a police officer won't make an arrest or that a prosecutor won't prosecute or that a court won't come back with a result that flies in the face of the law. But truly, it is hard for me to imagine that the content you describe would be the target of successful prosecution.

Joe Obenberger,
YNOT Emergency Contingency Command Center,
Chicago

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement, consent to nothing, but make no resistance, and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com. His website URL on the world wide web is http://www.xxxlaw.net