Mailing "obscenity" is Illegal?

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Hi, Guys! Yeah, in this case I'm asking the question because I really don't know anything and I don't get this.

I once read a law that stated at least to my reading: Mailing any obscene literature or pictures or any contraceptives is a crime. Now, that doesn't make any sense to me. Preventing the mailing of the obscene is limiting free speech, and contraceptives well for crying out loud that's limiting medicine!

As I said, I don't get this and it obviously has some loop hole or isn't the way I'm reading it; and I'm just trying to figure it out. Anybody mind giving me a hand?

Here's an address where you can go check it out.
http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+709+21++(pornography)

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18 USC 1461 is sometimes known as the Comstock Act, named for nineteenth-century morals crusader Anthony Comstock. Originally passed by congress in 1873, there have been revisions of this legislation throughout the years, the last being in 1994.

Although this law is still on the books, several court cases have drastically altered its reach. For instance, the law does not apply to literature regarding legal abortions, since such a regulation of speech would contravene the first amendment. Also, for a mailing to be banned under this statute, it must be deemed "obscene" by the local community standards (see Smith v. United States). Prosecutors typically find such community standards to be pretty lax, and so are largely unwilling to undertake these kinds of pornography prosecutions (there was a brief flurry of porn prosecutions at the beginning of Ashcroft's tenure as attorney general, but that effort was not sustained).

In short, court decisions have decidedly narrowed the scope of the law, and prosecutorial reluctance to file criminal charges means that this law is rarely enforced.

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joefromchicago wrote:

In short, court decisions have decidedly narrowed the scope of the law, and prosecutorial reluctance to file criminal charges means that this law is rarely enforced.

This looks like the product of "activist judges". What are the future prospects of this law?

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Acquiunk wrote:

This looks like the product of "activist judges".

How so?

Acquiunk wrote:

What are the future prospects of this law?

I have no idea.

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One cannot curse on the telephone, either. I happen to know someone serving 3 months for doing so. I wonder how many know about that!

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Fuzzy Law

joefromchicago wrote:

Also, for a mailing to be banned under this statute, it must be deemed "obscene" by the local community standards

Okay, let's see: I get the part where a legal abortion is legal.

But for literature and pictures, it must be approved by community standards? What's a community standard? Most people of a community would say any porn is sub standard (regardless of their personal use of it). What about famous contemporary author's such as Zane who writes erotic fiction, or the film Texas Chainsaw Massacre?

Escentially, what I'm asking is: What is a Community Standard, I tried to find a law that said: Community standard is:Whatever; but I can't find one.

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squinney wrote:

One cannot curse on the telephone, either. I happen to know someone serving 3 months for doing so. I wonder how many know about that!

Uh oh...so my creditors can bang me up for that? Thankfully, I usually preface my comments with "Excuse my language, but...."

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Freedom of speach doesn't mean that every has to be exposed to whatever you feel like.

It means that you can't forbid anyone from CHOSING to.

For example, my creditors prefer profanities, they like to feel devilish in their dealings (obviously, or they would have chosen a different career field).

Anyone who wants to see your unmentionables is free to come to your place of business. Everyone else is free to never see or hear of them.

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squinney wrote:

One cannot curse on the telephone, either. I happen to know someone serving 3 months for doing so. I wonder how many know about that!

How do they catch you? Does it only happen if the person you are talking to makes a complaint (and if so, how do they prove it?), or are there people listening in on your calls?

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I know in PA while a phone conversation recorded without your consent is illegal and inadmissable, answering machines are a completely different animal.

If you threaten to kill your lover on an answering machine, the judge takes this very seriously.

After all, you have a choice whether or not to leave a message--and you choose what sort of message to leave.

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Okay, I think I might have figured this law thing out. (As well as any human can understand law.)

To start with the contraceptive thing. This law seems to me to be two parted: One to prevent literature in favor of contraceptives. And Two to prevent any obscene literature. Possibly it had one purpose keeping lewdness out of society. Hence the "ancients" thought birth control would lead to lewdness; and obscenity too. (My thought!)

Anyway, Margaret Sanger (who founded the Birth Control League which later became Planned Parenthood) was one of the earliest violators of this law. She published in her magazine and in other pamphlets information about contraceptives. (This was before the amendment which classified only illegal contraceptives.) Because of that she had to flee to Europe. (Obviously later she had to return, blah, blah everything got cleared up and birth control's going strong today.)

Now the obscene part of the law seems to me to be mostly based on this ruling. Something maybe obscene if: it has no artistic, literary, or psychological value.

Well, there's my take. I'm probably wrong so if somebody knows more. Tell me.

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Re: Fuzzy Law

MrIVI wrote:

Okay, let's see: I get the part where a legal abortion is legal.

But for literature and pictures, it must be approved by community standards? What's a community standard? Most people of a community would say any porn is sub standard (regardless of their personal use of it). What about famous contemporary author's such as Zane who writes erotic fiction, or the film Texas Chainsaw Massacre?

Currently, the test applied by the federal courts is the three-part "Miller" test, first enunciated in Miller v. California. To be judged obscene, the trier of fact must determine:

(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.In practice, this is a rather formidable test to pass. Community standards are just one aspect of the test.

MrIVI wrote:

Escentially, what I'm asking is: What is a Community Standard, I tried to find a law that said: Community standard is:Whatever; but I can't find one.

A community standard is whatever standard the community adopts. There are no laws defining "community standard." Instead, the jury is supposed to reflect the community, and thus its decisions are taken to reflect the community's standards.

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Thanks

joefromchicago wrote:

To be judged obscene, the trier of fact must determine:
(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
In practice, this is a rather formidable test to pass. Community standards are just one aspect of the test.

You're saying it must fail all 3 tests? I hadn't got ready all the way up the most modern decisions. So I hadn't gotten to see how it had evolved all the way.

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Re: Thanks

MrIVI wrote:

You're saying it must fail all 3 tests? I hadn't got ready all the way up the most modern decisions. So I hadn't gotten to see how it had evolved all the way.

This page may provide some useful information.

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So what of the mail order companies that deal exclusivly with the obscene (adult magazines, DVD's "toys" etc.)?