ASK YNOT

Dear YNOT,

I am a newbie and I have just read your stuff for the first time. It will be a daily habit of mine. One of the articles said to ask, so I am asking.

Would the terms “fresh young orientals” and “see them before they get any older” be considered obscene? The content is predominantly Japanese series of legal aged girls posing nude and clothed.ASK YNOT

Dear YNOT,

I am a newbie and I have just read your stuff for the first time. It will be a daily habit of mine. One of the articles said to ask, so I am asking.

Would the terms “fresh young orientals” and “see them before they get any older” be considered obscene? The content is predominantly Japanese series of legal aged girls posing nude and clothed. No hardcore at all but definitely can see their genitals. It is all what is generally what is known as idols or (what an older guy like me remembers) pin-ups. The pages are to be submitted for TGP’s as upsell for a site that has much harder content.

I thank you in advance for your help, concern, professionalism and attention to detail.

Best Regards,

David

? ? ? ? ? ? ? ? ? ? ?

Dear Newbie David,

Freedom of expression in our country comes with the protection of the strongest guarantee known to the law, the First Amendment to our Constitution, the headliner of our Bill of Rights.

No state has to prohibit or punish material as obscene. But if a state attempts to do so by passing a criminal obscenity statute, the Supreme Court in Miller v. California told us in 1973 that it can only punish defendants for the publication of sexually expressive works. If the answer to all three of these questions is “yes”:

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

On the other hand, if what the image excites is a healthy interest in sex, a normal lust, it cannot be obscene under the 1985 reasoning of the Supreme Court in Brocket v. Spokane Arcades.

So, first we look to the statute in question. Some do purport to include lewd exhibition of genitals among the kinds of things mentioned. But that only opens a door which, it seems to me, gets closed pretty quickly.

In order for a work to be obscene, a work must appeal to a “prurient interest” in sex, when taken as whole, in light of contemporary community standards; The word “prurient” means morbid (diseased) or shameful. It seems to me that an attractive pin-up picture showing genitalia would stimulate a pretty normal interest in sex and would not be obscene for that reason alone. And, given the prevalence of erotic images of female genitalia in publications widely sold just about everywhere, and found on cable TV systems throughout the land, without significant criminal prosecution anywhere, I think that there are comparatively few places in America where a jury is likely to find that such a poster is patently offensive.

So much for the pictures.

As for the words that you directly ask about, “fresh young orientals” and “see them before they get any older”, it is also just about inconceivable that they could be the subject of a successful obscenity prosecution in any American jurisdiction. Of course, the phrases would have to be considered along with all of the other material that accompanies them, text, graphics, and images, because the law of obscenity deals with “works as a whole” and not with things taken in isolation. It has been decades since non-pictoral matter has commonly been the target of obscenity prosecution, and even in the fifties and sixties, the prosecuted text was far more raw than these words are.

No lawyer can ever guarantee that a police officer won’t make an arrest or that a prosecutor won’t prosecute or that a court will come back with a result that flies in the face of the law. But truly, it is hard for me to imagine that the content you describe would be the target of successful prosecution.

Joe Obenberger, J.D.
YNOT Emergency Contingency Headquarters,
Chicago
xxxlaw@execpc.com
http://www.xxxlaw.net

ASK YNOT

(more…)