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, applicable in Montana as in all states, criminalize activities involving the creation, distribution, and sale of obscene materials. These laws prohibit the possession with intent to sell or distribute, sending, shipping, or receiving, importing, and interstate transportation of obscenity. While private possession of obscene material is not criminalized, receiving such material through mail or carriers can be illegal. Violations of these laws, codified in 18 U.S.C. §§ 1460-1463 and 1465-1466, can result in fines and imprisonment. Additionally, it is illegal to broadcast obscene content via radio, cable, or subscription television, as well as to use misleading domain names to distribute obscene material, under 18 U.S.C. §§ 1464 and 1468, with penalties including fines and up to two years in prison. 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, whether the material appeals to prurient interests, depicts sexual conduct in an offensive way, and lacks serious value in literature, art, politics, or science.
