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 Virginia as in all states, criminalize various activities related to the creation, distribution, and sale of obscene materials. These laws prohibit the possession with intent to sell or distribute, sending, shipping, receiving, importing, and interstate transportation of obscene matter for distribution purposes. While private possession of obscene material is not criminalized, receiving such material through the mail or other carriers can be a violation. Convictions under these laws can result in fines and imprisonment. Additionally, producing obscene material with intent to distribute, and conducting business involving the sale or transfer of obscene matter, especially over the internet, is illegal. Broadcasting or distributing obscene content via radio, cable, or subscription television, as well as using misleading domain names to direct users to obscene material, are also federal offenses. The Supreme Court's Miller test is used to determine what constitutes obscenity, focusing on community standards and the lack of serious value in the material. These federal statutes include 18 U.S.C. §§ 1460, 1461, 1462, 1463, 1464, 1465, 1466, 1468, and 2252B.
