While the First Amendment does not protect materials declared legally obscene, the law does protect materials that are merely indecent or even offensive. If a work is legally obscene, it may be censored and its producers may be punished. If a work is not legally obscene it is protected by the First Amendment and cannot be censored.
In the landmark case of Miller v. California, 413 U.S. 15 (1973), the United States Supreme Court set out a three part test for test for determining whether speech or expression can be labeled obscene, and a work can only be considered obscene if all three conditions of the Miller test are satisfied:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
- Whether, applying contemporary community standards, the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law;
- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (This is also known as the SLAPS test – Serious Literary, Artistic, Political, Scientific.)
In addition to challenging constitutionally protected expressive speech, state and federal obscenity laws are frequently used to challenge a variety of sexually oriented businesses, including adult media, alternative lifestyle clubs, adult video and bookstores, gentlemen’s clubs, escort services, massage parlors, and other controversial entertainment businesses. These laws include run the gamut from restrictive permitting, licensing, and zoning ordinances to 18 USC § 2257 compliance for businesses engaged in the publication or distribution of erotic content, from asset seizure and forfeiture laws to federal and state criminal statutes.
If you or your business have been made the target of state or federal obscenity laws, it is essential that you hire an experienced lawyer to represent you and to advise you of your legal options.