Other Criminal Charges & Offenses Obscenity Laws?

[SomeGuy7760]

Not charged with anything just asking a question. If I did not deem said material to be obscene could a prosecutor still go after an obscenity charge?

 

[cbg]

Possibly, since you are not the overall legal arbiter of what is obscene. The facts would matter, however.

 

[SomeGuy7760]

like say what happened to Chris Handley in US v Handley (2008). I purchase a comic book which had some sexual content in it. I dont deem it obscene but a customs agent does. Do I just not matter in a charge like that?

 

[Highwayman]

You don't matter.

When you get charged let us know the details, including the state name. Otherwise speculation about this and that is simply a waste of time.

 

[SomeGuy7760]

Are obscenity charges commom? Lol

 

[adjusterjack]

Not since Lenny Bruce and George Carlin (7 words you can't say on TV).

Though customs would have the last say in confiscating material from other countries even though it's unlikely that the buyer would be prosecuted unless it's child pornography.

 

[mightymoose]

Not charged with anything just asking a question. If I did not deem said material to be obscene could a prosecutor still go after an obscenity charge?

Yes, because it does not matter if you consider it to be obscene. What batters is if it is obscene.
If you are unsure, show it to your grandmother and she will let you know.

 

[army judge]

Are obscenity charges commom? Lol

Yes, more common than one might imagine.

Most people charged with the crime possess materials deemed to be violative of US laws when returning from abroad and are discovered by CBP Agents at a PoE.

Under federal law, it is unlawful to distribute, receive, import, transport, produce, or sell obscene material. It is also against the law to possess material labeled as obscene if the person has the intent to sell or distribute it. However, it can be difficult to determine what qualifies as obscene, so if you were charged with possessing or selling obscene material, it is critical to contact an experienced federal crimes attorney who is familiar with federal case law and can help you formulate a defense.

Prohibited Conduct

Federal law makes it a crime to:

Possess obscene material with the intent to sell or distribute it;
Send, ship, or receive obscene materials;
Import obscene materials;
Transport obscene materials across state boundaries;
Produce obscene matter with the intent to sell or distribute it;
Engage in the business of selling or transferring obscene matter using interstate or foreign commerce, which includes the use of interactive computer services (i.e. the internet);
Broadcast or distribute obscene material via radio communication or by cable or subscription television; and
Aid or abet in the commission of the above offenses;
Although it is not technically a crime to have obscene materials in one's private possession, a person can be charged with receiving it if it was sent via the U.S. mail, common carriers, or interactive computer services. Those who are convicted of this offense face up to two years in prison and hefty fines. When the material involves a minor, the sentence is increased to ten years and the defendant may be required to register as a sex offender.

What Qualifies as Obscene Material?

Over a period of two decades, the U.S. Supreme Court created a test that judges and juries can use to determine whether material is obscene. According to the Court's opinions, a judge or jury must ask the following questions to determine whether material qualifies as obscene. If material satisfies the following three prong test, it will satisfy the federal definition of obscene:

Whether the average person, applying contemporary standards, would find that the material taken as a whole, appeals to an erotic, lascivious, or degrading interest in nudity, sex, or excretion;

Whether the average person finds that the matter depicts or describes sexual conduct in a patently offensive way, which includes showing ultimate sexual acts, lewd exhibition or sexual abuse; and

Whether a reasonable person finds that, taken as a whole, the material lacks serious literary, artistic, political, or scientific value.

Because so much hinges on this test, it is critical for defendants charged with possession of obscene materials to retain an experienced attorney who is familiar with its application and can collect evidence to combat the prosecutor's allegations.

19 U.S. Code § 1305 - Immoral articles; importation prohibited

(a) Prohibition of importation
All persons are prohibited from importing into the United States from any foreign country any book, pamphlet, paper, writing, advertisement, circular, print, picture, or drawing containing any matter advocating or urging treason or insurrection against the United States, or forcible resistance to any law of the United States, or containing any threat to take the life of or inflict bodily harm upon any person in the United States, or any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral, or any drug or medicine or any article whatever for causing unlawful abortion, or any lottery ticket, or any printed paper that may be used as a lottery ticket, or any advertisement of any lottery. No such articles whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the appropriate customs officer that the obscene or other prohibited articles contained in the package were inclosed therein without the knowledge or consent of the importer, owner, agent, or consignee, the entire contents of the package in which such articles are contained, shall be subject to seizure and forfeiture as hereinafter provided: Provided, That the drugs hereinbefore mentioned, when imported in bulk and not put up for any of the purposes hereinbefore specified, are excepted from the operation of this subdivision: Provided further, That the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercial purposes: Provided further, That effective January 1, 1993, this section shall not apply to any lottery ticket, printed paper that may be used as a lottery ticket, or advertisement of any lottery, that is printed in Canada for use in connection with a lottery conducted in the United States.

(b) [1] Enforcement proceduresUpon the appearance of any such book or matter at any customs office, the same shall be seized and held by the appropriate customs officer to await the judgment of the district court as hereinafter provided; and no protest shall be taken to the United States Court of International Trade from the decision of such customs officer. Upon the seizure of such book or matter, such customs officer shall transmit information thereof to the United States attorney of the district in which is situated either—
(1) the office at which such seizure took place; or
(2) the place to which such book or matter is addressed;
and the United States attorney shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized. Upon the adjudication that such book or matter thus seized is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. Upon adjudication that such book or matter thus seized is not of the character the entry of which is by this section prohibited, it shall not be excluded from entry under the provisions of this section.
In any such proceeding any party in interest may upon demand have the facts at issue determined by a jury and any party may have an appeal or the right of review as in the case of ordinary actions or suits.
(c) 1 Institution of forfeiture proceedings
Notwithstanding the provisions of subsections (a) and (b), whenever a customs officer discovers any obscene material after such material has been imported or brought into the United States, or attempted to be imported or brought into the United States, he may refer the matter to the United States attorney for the institution of forfeiture proceedings under this section. Such proceedings shall begin no more than 30 days after the time the material is seized; except that no seizure or forfeiture shall be invalidated for delay if the claimant is responsible for extending the action beyond the allowable time limits or if proceedings are postponed pending the consideration of constitutional issues.



Citizen's Guide To U.S. Federal Law On Obscenity




19 U.S. Code § 1305 - Immoral articles; importation prohibited

 

[SomeGuy7760]

Imo thats kinda dumb. So if i go on pornhub watch some vids which i didnt think were obscene i can get two years in prison. Land of the free, right?

 

[adjusterjack]

Imo thats kinda dumb. So if i go on pornhub watch some vids which i didnt think were obscene i can get two years in prison. Land of the free, right?

Read a book called "You Have the Right to Remain Innocent" by law Professor James Duane and you'll learn all about the thousands of dumb federal laws.

 

[army judge]

Imo thats kinda dumb. So if i go on pornhub watch some vids which i didnt think were obscene i can get two years in prison. Land of the free, right?

Vote with your feet, my wife and I did.

We own a home in Belize, and possess landed immigrant status, too.

Only you can perfect your life.

One thing is for sure, there'll never be any real revolutions.

We prefer to be left alone, to live our remaining years in peace.

Currently we spend about 3 to 4 months in Belize, the remainder in the USA.

It'll soon be reversed.

I'm free to come and go as I please.

 

[zddoodah]

If I did not deem said material to be obscene could a prosecutor still go after an obscenity charge?

What does "said material" mean? An obscenity charge against whom and for what?

Regardless of how you answer these questions, the subjective opinion of you or any individual is completely irrelevant to the prosecutor's legal or practical ability to file charges.

like say what happened to Chris Handley in US v Handley (2008). I purchase a comic book which had some sexual content in it. I dont deem it obscene but a customs agent does. Do I just not matter in a charge like that?

Do you not matter? Of course the defendant matters. Your subjective opinion about the comic book, however, doesn't matter in the slightest. As far as the case mentioned, I'm not familiar with it, and the Wikipedia article about it doesn't explain the facts coherently, and I'm not going to spend more time digging into it.

All that said, don't you think it would be pretty stupid if the defendant could avoid obscenity charges simply by claiming that he/she doesn't find the material obscene? Wouldn't every defendant do that, thereby making obscenity laws pointless?

Are obscenity charges commom?

Define "common"? If you're seeking statistics, you can (presumably) google for them as well as anyone else here.

"Land of the free" is nothing more than a line in a song.

 

[SomeGuy7760]

Do you not matter? Of course the defendant matters. Your subjective opinion about the comic book, however, doesn't matter in the slightest. As far as the case mentioned, I'm not familiar with it, and the Wikipedia article about it doesn't explain the facts coherently, and I'm not going to spend more time digging into it.

All that said, don't you think it would be pretty stupid if the defendant could avoid obscenity charges simply by claiming that he/she doesn't find the material obscene? Wouldn't every defendant do that, thereby making obscenity laws pointless?

I think its pretty stupid that my subjective opinion doesnt matter ("knowingly" having obscene materials) but the subjective opinion of random people in my town do matter. I do think they are pointless to things other than real child pornography, as a person can go to prison for viewing something someone doesnt like. Say if you live in a highly religous town and you watch gay porn which is not obscene to you, but is obscene to the religous people in the town you can go to jail.

 

[zddoodah]

I think its pretty stupid that my subjective opinion doesnt matter ("knowingly" having obscene materials)

Had you bothered to tell us in your original post that the unidentified state's obscenity law being discussed requires that the defendant's possession of the obscene material be "knowing," my prior response would have changed somewhat. The defendant's subjective opinion about the material still doesn't matter, but his/her knowledge that the material is obscene most certainly would matter.

the subjective opinion of random people in my town do matter.

No they don't.

I do think they are pointless to things other than real child pornography, as a person can go to prison for viewing something someone doesnt like. Say if you live in a highly religous town and you watch gay porn which is not obscene to you, but is obscene to the religous people in the town you can go to jail.

Well...unless you can convince the U.S. Supreme Court to adopt a more national standard for obscenity or create some bright lines, this isn't going to change much.

 

[SomeGuy7760]

Had you bothered to tell us in your original post that the unidentified state's obscenity law being discussed requires that the defendant's possession of the obscene material be "knowing," my prior response would have changed somewhat. The defendant's subjective opinion about the material still doesn't matter, but his/her knowledge that the material is obscene most certainly would matter.



No they don't.



Well...unless you can convince the U.S. Supreme Court to adopt a more national standard for obscenity or create some bright lines, this isn't going to change much.

I was mostly going off of the Federal Statute of Obscenity and not a state by state basis.

Agree to disagree; deeming if something has value or is patently offensive changes with every person. People think a picture of soup is art or a hustler magazine is offensive.

Wasnt expecting things to change, just asking a question about a pretty vauge law which has spanned 40 years.

 

[zddoodah]

I was mostly going off of the Federal Statute of Obscenity

There is no federal law that generally criminalizes the mere possession of "obscene" material. There are statutes about possession with intent to sell on federal property, sending such material through the mail, transporting it for distribution or sale, importation, etc. Taking 18 U.S.C. section 1460 as an example, the "knowing" element applies to "sells or possesses." One would have to research case authority to see if it means that the defendant must "knows" that the thing being possessed with intent to sell is "an obscene visual depiction."

Agree to disagree; deeming if something has value or is patently offensive changes with every person.

I'm not sure what you want to "agree to disagree" about. I don't disagree that every person's opinion about something may be different. Nor do I disagree that the constitutional standards for obscenity are vague (perhaps to the point of being unworkable except in extreme cases).

 

[cbg]

I think his issue is with the fact that the law is not forced to agree with his assessment of whether something is obscene or not.

 

[SomeGuy7760]

There is no federal law that generally criminalizes the mere possession of "obscene" material. There are statutes about possession with intent to sell on federal property, sending such material through the mail, transporting it for distribution or sale, importation, etc. Taking 18 U.S.C. section 1460 as an example, the "knowing" element applies to "sells or possesses." One would have to research case authority to see if it means that the defendant must "knows" that the thing being possessed with intent to sell is "an obscene visual depiction."



I'm not sure what you want to "agree to disagree" about. I don't disagree that every person's opinion about something may be different. Nor do I disagree that the constitutional standards for obscenity are vague (perhaps to the point of being unworkable except in extreme cases).

I know that. It was my mistake i didnt add with intent to distribute next to posesses.

Your response to my belief that the subjective opinion of what people in my community believe is obscene do matter was "No they dont". I dont agree with that statement. Isnt it the Jurys descision to decide whats obscene and what isnt?

 

[SomeGuy7760]

I think his issue is with the fact that the law is not forced to agree with his assessment of whether something is obscene or not.

Its not that theyre forced to agree its the fact they dont even take it into account.

"Oh you like this porn huh? I think its obscene. You dont? Well youre under arrest anyway. We need to have a jury look at it to deem if its obscene".

 

[SomeGuy7760]

There is no federal law that generally criminalizes the mere possession of "obscene" material. There are statutes about possession with intent to sell on federal property, sending such material through the mail, transporting it for distribution or sale, importation, etc. Taking 18 U.S.C. section 1460 as an example, the "knowing" element applies to "sells or possesses." One would have to research case authority to see if it means that the defendant must "knows" that the thing being possessed with intent to sell is "an obscene visual depiction."

Technically there is one: 18 U.S.C 1466A(b)

It criminalizes the knowing possession of cartoon cp that lacks serious value. Not with intent to distribute but just possession.