What is obscenity?

Obscenity is sexually explicit material that lacks serious literary, artistic, political, or scientific value, falls outside the protection of the First Amendment, and may be restricted or prohibited by federal, state, and local governments. The Supreme Court defined the category through the three-part Miller v. California (1973) test, replacing the earlier and less workable test from Roth v. United States (1957).

Under Miller, material is obscene if the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; if the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and if the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. All three elements must be present, and only the third element is judged on a national rather than local standard under Pope v. Illinois (1987).

The community standards element allows local juries to apply local norms, recognizing that sexual mores vary across the United States. The patently offensive element requires more than mere depiction of nudity or sexual activity; the law must specifically define what is forbidden. The serious value element provides a safety valve for important works that might otherwise be punished, and it gives strong protection to art, literature, scientific research, and political commentary.

Obscenity is one of the few categories of unprotected speech, alongside incitement to imminent lawless action, true threats, fighting words, defamation, child pornography, and certain commercial speech regulations. Federal statutes including 18 U.S.C. § 1462, § 1465, and § 1466A criminalize obscenity in interstate or foreign commerce, on the postal service, and in broadcast media. The Federal Communications Commission imposes additional restrictions on broadcast obscenity, indecency, and profanity under 18 U.S.C. § 1464 and FCC v. Pacifica Foundation (1978).

Internet obscenity is governed by the same Miller test, applied through cases such as Ashcroft v. ACLU (2004), although the Communications Decency Act of 1996 and the Child Online Protection Act of 1998 produced a complex regulatory landscape. Child pornography is treated separately under New York v. Ferber (1982), which held that the state's compelling interest in protecting children justifies a categorical ban without applying the Miller test. Naturalization candidates should know obscenity as a narrow category outside First Amendment protection.