Federal obscenity law prohibits (1) the possession with intent to sell or distribute obscenity; (2) sending, shipping, or receiving obscenity; (3) importing obscenity; and (4) transporting obscenity across state borders for purposes of distribution.
Although the law does not criminalize the private possession of obscene matter, the act of receiving such matter may violate federal statutes prohibiting the use of the U.S. Mail, common carriers, or interactive computer services for the purpose of transportation. See 18 U.S.C. §1460; 18 U.S.C. §1461; 18 U.S.C. §1462; 18 U.S.C. §1463. And a person convicted under one or more of these statutes faces fines and imprisonment. It is also a crime to aid or abet another person in committing these crimes.
Federal law also prohibits (1) the production of obscene matter with intent to sell or distribute it and (2) engaging in the business of selling or transferring obscene matter by using or affecting interstate or foreign commerce—including interactive computer services. See 18 U.S.C. §1465; 18 U.S.C. §1466. For example, it is illegal to sell and distribute obscene matter on the internet. Persons convicted of these crimes face fines and imprisonment.
It is also a violation of federal obscenity law to broadcast or distribute obscene language or matter by radio communication or by cable or subscription television. See 18 U.S.C. §1464; 18 U.S.C. §1468. And it is a violation of federal law to use a misleading domain name on the internet with the intent to deceive a person into viewing material constituting obscenity. See 18 U.S.C. §2252B. A person convicted under these statutes faces fines and up to two years in prison.
The United States Supreme Court has never interpreted the freedom of speech guaranteed under the First Amendment to the U.S. Constitution to include obscenity, which is generally considered to fall outside the protection of the First Amendment. The Supreme Court established the test that judges and juries use to determine whether matter is obscene in three landmark cases: Miller v. California, 413 U.S. 15, 24-25 (1973); Smith v. United States, 431 U.S. 291, 300-02, 309 (1977); and Pope v. Illinois, 481 U.S. 497, 500-01 (1987). The three-part Miller test is:
1. Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);
2. Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and
3. Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Federal obscenity laws, as outlined in various sections of Title 18 of the United States Code (18 U.S.C. §§ 1460-1468, 2252B), criminalize the production, distribution, and transportation of obscene material. These laws apply in Florida as they do across all states. The laws prohibit activities such as possessing with intent to sell or distribute, sending, shipping, receiving, importing, and transporting obscene material across state lines for distribution purposes. While private possession of obscene material is not criminalized, receiving it through the mail or other carriers can be a violation. The production and business of selling or transferring obscene material, including via the internet, is also illegal. Broadcasting or distributing obscene content through radio, cable, or subscription television, as well as using misleading domain names to distribute such content, are violations of federal law. Convictions under these statutes can result in fines and imprisonment. The Supreme Court has established the Miller test to determine what constitutes obscenity, which is not protected by the First Amendment. This test considers community standards and whether the material appeals to prurient interests, depicts sexual conduct in an offensive way, or lacks serious value.
