Obscenity in the media: books, films, advertisements

• Author: Varsha Mullick

Introduction

With the growth of modern technologies & advancement of science, information has become easy to circulate & communicate to the whole of the world. We can easily get the news of an earthquake or landslide happening in the other part of the world with the help of satellites. The media has contributed immensely in making this world a compact place & connecting everyone with fast & easy medium. Earlier delivering news had been difficult & took a lot of time even when in the same country. With the advent of internet any news can be delivered just by a click of the mouse in a few seconds to a few minutes. With the developing media & becoming globalized, the content of the news or message that is circulated or delivered has become much vulnerable. A world cinema which tries to approach the audience in the whole world at large, made in a western country might just hurt the sentiments of people in the Eastern part of the world who are conservative & may not be able to appreciate the art or literature or the social message which the film tries to portray. Hence comes regulations in force to regulate which content would be suitable for display for a particular group of audience. Though these regulations are also often not the correct test as a neutral body adjudges it & there can be sections of people even in a conservative group who might accept a liberal view unlike others. Obscenity is one of the ingredients which prohibit content from being screened or displayed. The concept of obscenity is relative. Obscenity has been discussed & test for obscenity has been laid down by several countries depending on the moral principles, decency codes & social structure of that particular country. In this paper, the researcher discusses obscenity as has been discussed under English Law, Laws of United States & India by discussing various cases & the statutes in force.

English Obscenity Law:

The test to determine obscenity under English law has been coined quite sometimes back in R vs Hicklin(1) case. This is one of the earliest cases where the test for obscenity has been laid down. This case revolved around Henry Scott who resold copies of anti Christ pamphlets entitled "The Confessional Unmasked: shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession." When the pamphlets were ordered to destroy as obscene, Scott appealed the order to the court of Quarter Sessions. Benjamin Hicklin, a London magistrate who was in charge of such orders as Recorder, revoked the order of destruction. Hicklin held that Scott's purpose had not been to corrupt public morals but to expose problems within the Catholic Church; hence, Scott's intention was innocent.The authorities appealed Hicklin's reversal, bringing the case to the consideration of the Court of Queen's Bench. In the Queen’s Bench it was held that the order of the justices were right as the publication of such an obscene pamphlet was a misdemeanor, and was not justified or excused by the appellant's innocent motives or object; he must be taken to have intended the natural consequences of his act.

The modern English law on obscenity began with Obscene Publications Act which came into force in 1959. This Act was brought into force to amend the law relating to publication of obscene matter, to provide for the protection of literature; & to strengthen the law concerning pornography.(2) Sec 1of the Act lays down the test for determining obscenity. Sec 1(1) of the Act states: “For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”.

On 1 September 2001, Sections 46 and 47 of the Criminal Justice and Police Act, U.K. came into force, making it an offence to place advertisements relating to prostitution in, or in the immediate vicinity of, a public telephone box.

Obscenity Law in United States:

In U.S.A , the term obscene refers to material which the average person applying contemporary standards would find that, taken as a whole, appeals to the prurient interest, contains patently offensive depictions or descriptions of specified sexual conduct, & has no serious literary, artistic , political or scientific value. Miller vs California(3) is one of the important cases decided by the Supreme Court of U.S which lays down the community standard test to define obscenity offensive. After the age old Hicklin’s test laid down by the English courts, the Miller’s test is much modern & contemporary. In this case the appellant conducted a mass mailing campaign to advertise the sale of illustrated books , euphemistically called adult material. After a jury trial he was convicted for violating California Penal Code sec 311.2 (a) a misdemeanor, by knowingly distributing obscene matter, and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police. The brochures advertised four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the brochures contained some descriptive printed material, primarily they consisted of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed. This case involves the application of a State's criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This case laid down three pointers in determining whether the content for display is obscene or not. The three tests are: (a) it appeals to the prurient interest, (b) it is patently offensive, and (c) it lacks any redeeming value.

Roth vs United States(4) is one of the earliest cases which the Supreme Court of U.S decided on obscenity. In this case the court sustained a conviction under the federal statute punishing the mailing of obscene lewd , lascivious or filty . . ." materials. The key to that holding was the Court's rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating:"All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion --...