Obscenity Laws Us/Uk

Only available on StudyMode
  • Download(s) : 13
  • Published : May 6, 2013
Open Document
Text Preview
NOTES
TWO NATIONS, ONE WEB: COMPARATIVE LEGAL APPROACHES TO PORNOGRAPHIC OBSCENITY BY THE UNITED STATES AND THE UNITED KINGDOM William T. Goldberg∗

INTRODUCTION ............................................................................................. 2121 I. OBSCENITY LAW IN AMERICA ........................................................... 2122 A. What Is Obscene? ...................................................................... 2122 B. Who Is Obscene? ....................................................................... 2126 C. When and Where Is It Obscene?................................................ 2130 D. So What?.................................................................................... 2132 II. OBSCENITY IN THE UNITED KINGDOM .............................................. 2135 A. Basic Similarities Between U.S. and U.K. Obscenity Laws....... 2136 B. Changing U.K. Obscenity Laws: Why and How?...................... 2138 C. What Changed? ......................................................................... 2140 III. PORN IN THE U.S.A............................................................................ 2142 A. Fixing Community Standards .................................................... 2143 B. Fixing the Who and the When.................................................... 2145 C. The Value of Regulation ............................................................ 2146 CONCLUSION ................................................................................................. 2148 INTRODUCTION Modern American obscenity law has developed over a period of approximately fifty years.1 The foundation of the law is built around a single test, the “community standards test,” which tasks a trier of fact with gauging whether given materials would be considered obscene by the standards of the average member of the community in which they are made available.2 If that trier of fact deems those materials obscene, then the producer or distributor of ∗

J.D. Candidate, Boston University School of Law, 2011; B.A., Boston University, 2006. I am grateful to Professor Jay Wexler for his assistance developing this topic, to Daniel Devoe for consistently good advice gladly given, and to the editors and staff of the Boston University Law Review for bringing this Note to publication. For years of support, I would like to thank my parents Thomas and Margaret Bania, and my brother Noah Goldberg. Most importantly, I would like to thank my wife, Jill Johnson, who makes most things possible and all things worthwhile. 1 See Roth v. United States, 354 U.S. 476, 484 (1957). 2 Id. at 489.

2121

2122

BOSTON UNIVERSITY LAW REVIEW

[Vol. 90: 2121

such materials may face fines or imprisonment.3 The application of the community standards test has been refined, but never fully clarified.4 Thus, questions debated at the test’s first official implementation by the Supreme Court in the 1950s are still in question today: What types of materials actually fall within the scope of obscenity? What is the proper definition of the “community” from which we should draw our standards? What role should individual privacy rights play? How do political pressures impact the application of obscenity laws? More recently, how should this standard apply following technological advances, like the internet, which have expanded the volume and variety of potential obscenity available in any given place at any given moment? This Note examines the underlying issues in U.S. obscenity law that raise these questions, yet primarily focuses on the impact of the internet on modern obscenity law in the United States and the United Kingdom. Part One examines these basic questions and explores their complexities. Part Two introduces and examines recent changes in U.K. law that address many of these same questions. Effective in 2009, the Criminal Justice and Immigration Act 2008 sharpened the United Kingdom’s definition of obscenity by...
tracking img