CatholicVote’s “Hide the Pride 2023” campaign is in full swing. Reports and photos from around the country confirm that parents have checked out thousands of “Pride” books in libraries from upscale East Coast cities to rural Michigan towns.
As parents leaf through their newly borrowed books, they often share their shock at the content of books like “Flamer,” a graphic novel that includes illustrations of group masturbation sessions and homosexual teen fantasies. Another book, “Blankets,” illustrates child genitalia and sexual abuse, as well as the author’s own first sexual relationship.
The question we get most often? Are these books even legal under federal obscenity laws? If they are legal, who gets to decide what is “obscene” and what isn’t?
Efforts have been tried and have failed in some states, like Virginia, to label books like “Gender Queer” and “A Court of Mist and Fury” as “obscene” and thus illegal to distribute to minors. The judge in a Virginia case cited the First Amendment’s right to Free Speech as protecting the rights of adults to distribute the materials.
According to the U.S. Department of Justice (DOJ), the First Amendment does not cover obscene material, which “depict[s] or describe[s] sexual conduct.”
“I Know It When I See It”
It remains difficult to create a simple standard that clearly defines “obscenity.” The Supreme Court itself has struggled to provide clear guidelines for the American justice system on what constitutes “obscene material.” In oral arguments for Jacobellis v. Ohio (1964), Justice Potter Stewart famously said: “I know it when I see it.”
Stewart’s standard has not been helpful in guiding judges in the years since.
Federal judges most often apply the three-pronged “Miller test” – named after the 1973 Supreme Court case Miller v. California – in obscenity cases. The parameters are:
- whether “the average person” and “contemporary community standards” would think the material “excites lustful thoughts” or is obsessed with nudity, sex, or excretion
- whether the work “in a patently offensive way” depicts sexual conduct
- whether the work “lacks serious literary, artistic, political, or scientific value”
The DOJ’s “Citizens Guide” concludes that “any material that satisfies this three-pronged test may be found obscene,” but the language leaves significant room for interpretation – and abuse. Justice William Brennan wrote the dissent for Miller, pointing out that obscenity laws were too vague and could not be applied without “jeopardizing fundamental First Amendment values.”
What About Kids?
On the other hand, the laws may also be so vague that they cannot be used to protect children from sexually explicit content.
Section 1466A of Title 18, U.S. Code, gives slightly more specific guidelines when it comes to minor children:
It is illegal for any person to knowingly produce, distribute, receive, or possess with intent to transfer or distribute visual representations, such as drawings, cartoons, or paintings that appear to depict minors engaged in sexually explicit conduct and are deemed obscene.
Material packaged for children and teens “can be deemed obscene if it (i) depicts an image that is, or appears to be a minor engaged in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse and (ii) if the image lacks serious literary, artistic, political, or scientific value.”
“Value,” however, is in the eye of the beholder. And in a nation where “community standards” with regard to sex are highly polarized, it is still almost impossible to label any given book “obscene” in a way that holds up in court.
