MBE Fast Fact: Obscenity

"I shall not today attempt to further define the kinds of material I understand to be embraced within that shorthand description ["pornography'] and perhaps I could never succeed in intelligibly doing so. But I know it when I see it."

So said Justice Potter Stewart in a 1964 Supreme Court opinion attempting to determine whether a movie was protected speech under the First Amendment or whether it fell outside the zone of protected speech because it was obscene.

You likely won't need to define pornography on the MBE, but you will need to understand the test for obscenity since obscene speech is not protected by the First Amendment. Here's what to know:

Speech is obscene if it describes or depicts sexual conduct that taken as whole by the average person does all 3 of the following:

~ Appeals to the prurient interest in sex. A community standard will be used to determine whether this element has been satisfied.

~ Is patently offensive and an affront to contemporary community standards.

~ Lack serious literary, artistic, political, or scientific value. Notably, here rather than a community standard, a national reasonable person standard is used to determine if this element is satisfied.

Another point to note, the state may adopt a specific definition of obscenity applying to materials sold to minors even though the material might not be obscene if the intended audience were instead adults.