Obscenity is a category of speech that is unprotected by the First Amendment's Freedom of Speech and Expression protections. Obscenity laws are concerned with prohibiting lewd, or extremely offensive words or pictures in public. All fifty states have individual laws controlling obscene material.
Obscenity is evaluated by federal and state courts alike using a three-part test established by Miller v. California. The Miller test for obscenity includes the following criteria:
- Whether the average person sees the material as having/encouraging excessive sexual interest based on community standards.
- Whether the material depicts or describes sexual conduct in a clearly offensive way as defined by the applicable state law, and
- Whether the work, when considered in its entirety, “lacks serious literary, artistic, political, or scientific value.”
For example, child pornography violates all three parts of the Miller test and making or distributing such material is a crime. In New York v. Ferber the Supreme Court limited the application of the Miller test for child pornography to sexual conduct as "adequately defined by the applicable state law, as written or authoritatively construed" in addition to the element of scienter.
For an example of state obscenity laws and definitions see:
2023 New York Laws > PEN - Penal > Part 3 - Specific Offenses > Title M - Offenses Against Public Health and Morals > Article 235 - Obscenity and Related Offenses > 235.00 - Obscenity; Definitions of Terms and 235.07 - Obscenity in the First Degree.
For more information, please visit the U.S. Justice Department’s Citizen's Guide To U.S. Federal Law On Obscenity.
Additional Resources:
- U.S. Constitution
- U.S. Supreme Court:
- Federal Law
[Last updated in October of 2024 by the Wex Definitions Team]