Plopper: Chapter 8
Optional Middleton Assignment: Chapter 8
1. An average person applying contemporary local community standards finds that the work, taken as a whole appeals to prurient interests.
2. The work depicts in a patently offensive way sexual conduct, specifically defined by applicable state law.
Arkansas State Law: A.C.A. § 5-68-302 (2006)
"Obscene material" means a material that:
(A) Depicts or describes in a patently offensive manner sadomasochistic abuse, sexual conduct, or hard-core sexual conduct;
"Hard-core sexual conduct" means a patently offensive act, exhibition, representation, depiction, or description of:
(A) An intrusion, however slight, actual or simulated, by any object, any part of an animal's body, or any part of a person's body into the genital or anal opening of any person's body; or
(B) Cunnilingus, fellatio, anilingus, bestiality, a lewd exhibition of genitals, or an excretory function, actual or simulated;
"Sadomasochistic abuse" means flagellation, mutilation, or torture by or upon a person who is nude or clad in an undergarment or in revealing or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained on the part of a person so clothed, in a sexual context; and
"Sexual conduct" means human masturbation or sexual intercourse.
3. The work in question lacks serious literary, artistic, political or scientific value.
S erious
L iterary
A rtistic
P olitical
S cientific
Must have an excess of sexual detail, a repetitive nature
Not enough that the material elicits normal, healthy or lustful thoughts. To be obscene, the material must appeal to lascivious (expressing lust or lewdness), shameful or morbid interest in sex
Mere nudity, not patently offensive
Four-letter words because not sexually arousing (prurient interests)
A normal adult, not the highly sensitive or the callous, the educated or the uneducated.
Law of obscenity allows application of a "contemporary community standard"
BUT regardless of community standard, definition of patent offensiveness requires hard-core sexual acts
Sexual materials not obscene to adults can be prohibited for children.
BUT serious literature and objects of art that contain only nudity or sexual information are not obscene to children any more than they are to adults.
A state may prohibit the distribution of pictures and films in which children under 16 perform sexual acts.
Distributors may be punished even if didn't produce materials because the distribution of child pornography is "intrinsically related to the sexual abuse of children."
The Child Online Protection Act (COPA) tried to outlaw computer-generated depictions of children performing sexual acts, but the Supreme Court overturned it.