BUSINESS LAW 101 / Obscenity

By Albert L. Kelley

What is obscenity?  The courts have struggles with this question for years.  Differing people have differing definitions. To some almost anything is obscene; to others almost nothing is.  In 1964, Supreme Court Justice Potter Stewart said, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it”.  He showed that even the Supreme Court realized the difficulty in defining obscenity.    

Even the statutes are vague.  They state: ““Obscene” means the status of material which: (a) The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest; (b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and (c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.” The only thing clear in the statute is that “A mother’s breastfeeding of her baby is not under any circumstance “obscene.””

What makes this definition so difficult to enforce is the use of the word “and”.   To be obscene, the item must meet the requirements of all three parts of the definition. In other words, while something may be graphic and offensive, if it has literary or political value, it is not obscene.

The statute also defines certain establishments, activities and items that are used to determine other penalties as well.  Due to the family nature of this newspaper, we will not cover them here.  

While the obscenity standard is hard to define, once the standard is met, the penalties come into play. Mere possession of obscene material is a second-degree misdemeanor.  Possession with the intent to sell or distribute obscene materials is a first-degree misdemeanor. If it is a second offense the penalty moves to a third-degree felony.  If the material deemed to be obscene involves minors, it also rises to a third-degree felony (ignorance or lack of knowledge that the person is a minor is not a defense).

Another thing that makes this statute unique is an instruction clause at the end. It states: “The several sheriffs and state attorneys shall vigorously enforce this section within their respective jurisdictions.” While the sheriffs and state attorneys are to enforce all laws, the legislature felt this was such an important issue that they added this provision. 

The next portion of the statutes discusses the sale of “harmful materials” to minors.  This statute makes it a third-degree felony to sell, rent or loan for money any “picture, photograph, drawing, sculpture, motion picture film, videocassette, or similar visual representation or image of a person or portion of the human body which depicts nudity or sexual conduct”.  There are no defenses regarding knowledge of the age of the minor, nor is there any defense for artistic basis.  Therefore, under a strict reading of the statute, it would be unlawful to sell a 17-year-old a book of famous works of art that included copies of the Birth of Venus by Botticelli, The Creation of Adam by Michelangelo, the statue of David by Michelangelo, The Thinker by Rodin, the statue of Venus de Milo by Antioch, the nude Maja by Goya, or La Danse by Matisse.  Each of these classic works of art contain depiction of nudity which would violate the law.  This actually could create educational problems as these works of art are often taught in college humanities classes, and many college students who buy textbooks that include these pieces start college when they are still under 18 years of age.  

The next portion of the statute makes it illegal to sell to minors any book, magazine or sound recording that gives explicit descriptions of sexual activity.  What is not clear is that, while this would technically include CD’s of modern music that contain certain phrases that are today fairly common, whether it would include a subscription to satellite radio that plays those same songs is not. 

Al Kelley has worked as an attorney in Monroe County for the last 31 years. He is the author of five law books available through Absolutely Amazing E-Books and the host of “Basics Of The Law”, a legal YouTube channel. He also previously taught business law, personnel law, and labor law at St. Leo University. This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney. 

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