by Eric Wharton
What is considered obscene writing?
Very few writers will need to be concerned about obscenity. It's not the language that appears in a majority of fiction writing, it's the written expression of deviant sexual acts that go way beyond the norm. However, it's important that all writer's understand what obscenity is. Who knows, perhaps you may choose to write something one day that pushes the edge.
The U.S. Supreme Court has never upheld an obscenity conviction related only to written words, even though there are no decisions precluding it from doing so. The reason is because it takes effort to be offended by words. Pictures create an immediate reaction, but you have to visualize with a book. You can always stop reading before you get that reaction. You have to read and understand the words before offense is formulated.
At one time, obscenity was defined by the Supreme Court of the United States who, in its ultimate wisdom, stated that those responsible for judging obscenity will “know it when they see it.” This became a joke, but fortunately, more recent rulings define obscenity more clearly.
Miller v. California is the landmark case still used today to formulate opinions about obscenity. In 1973, the Supreme Court decided the case that still stands as precedent.(1) In it, the Court found that obscene material is not protected by the First Amendment to the Constitution. Under the so-called Miller test, to prove material is obscene, the prosecution must convince a jury that the average person, applying a contemporary COMMUNITY standard would find the material in question ...
appeals only to prurient interests (A morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex).(2)
is patently (obviously) offensive (it so exceeds the generally accepted limits of candor as to be clearly offensive.)
lacks serious literary, artistic, political, or scientific value.
The key component here is community standard, which is the standard that prevails in the community in question, not a national standard, individual or small group of individuals. It's the community as a whole, which may apply to an entire state. To complicate this matter, many community standards are not up to date. It would be unfortunate, indeed, if a community standard was re-written simply to prosecute a specific individual. Most standards need to be updated so authors can know exactly what the standards are in their community.
You may ask, wasn't the Miller case a Supreme Court trial and didn't they rule against the appellant. True, but it's interesting to note that this case came about when Miller sent unsolicited advertising brochures through the mail addressed to a restaurant in Newport Beach, California. The brochures advertised four books that primarily consisted of pictures and drawings depicting explicit sexual activities. The mail was opened by the manager of the restaurant and his mother and since they had not requested the brochures, they complained to the police. It was the graphic depiction of acts that was upheld, not the written word.
A more current case involving the written word came about in October of 2006. Karen Fletcher was charged with obscenity for writing and posting on the internet fictional stories that involved the rape, torture, and and murder of children, even infants.(3) On the surface it seemed to be clearcut obscenity. However, the story is more involved. Ms. Fletcher was raped as a child and she used the fictional stories as a way of dealing with her own abuse. The stories were indeed posted online, but they were password protected and she charged so only those people who asked were allowed access. Most of the writing community were confident that she would be cleared of all charges, resulting in a landmark judgement that would protect writers in the future.
So where does it stand today? Sadly, Ms. Fletcher was so traumatized by her ordeal as a child that it left her with deep-seated paranoia with regard to appearing in front of people. Coupled with that was the ever-present possibility that no one is ever sure how a judgement will be rendered. As a result, fearing that to go through a court trial and possible subsequent incarceration would seriously jeopardize her emotional stability, Ms. Fletcher plead guilty and plea bargained for her incarceration to occur in her home rather than in a prison.
Who can blame her, and its not difficult to empathize with her. Unfortunately, because no trial occurred, writers remain in the dark about just how far into the written word that obscenity laws extend. So, the issue is still to be decided in a court of law. Who will be the next writer to be used as an example? Just be aware of material you present, whether it is in a traditional published format or not.
(1) US Supreme Court Center. Miller v. California - 413 U.S. 15 (1973), Justia.com, http://supreme.justia.com/cases/federal/us/413/15/case.html accessed December 2013.
(2) Lectric Law Library. "Purient Interest," Lectlaw.con, http://www.lectlaw.com/def2/p106.htm accessed December 2013
(3) Kernes, Mark. "Karen Fletcher Pleads Guilty In ‘Red Rose’ Obscenity Case," CyberLaw Blog. http://cyberlaw.org.uk/2008/05/18/karen-fletcher-pleads-guilty-in-red-rose-obsce... accessed December 2013.