Obscenity Tests via Federal Standards: By The Numbers

Kim Kardashian in 'Playboy,' 2007 (The Trent)

Kim Kardashian in ‘Playboy,’ 2007 (The Trent)

I’ve never wanted to go into law (except when I watch “How to Get Away with Murder”), but if I did, there are two areas of the field that I’ve always found fascinating: intellectual property and obscenity laws. The first topic doesn’t apply here, but the second topic has all the business in the world of being covered here.

There are so many facets of obscenity, but today we’re looking at how federal standards define the term, as the First Amendment of free speech doesn’t extend to protect obscenity. A few different tests have been put in place from time to time to establish a baseline of what’s obscene and what isn’t.

Here’s how that’s changed over the years:

Number of obscenity tests: 3

The Hicklin Test, 1879 

This one was adapted from an 1860s British case. It became standard stateside when it was used in 1879 to prosecute D.M. Bennett, who was charged with obscenity when he tried to send out free-love information through the mail (this also upheld the Comstock Act).

The Hicklin test defined obscenity as material designed to corrupt impressionable minds (whether they were young or not).

– The Roth Test, 1957

This test overturned the Hicklin test, and set a new standard: Material would be considered obscene if the nature of the work deviated from a conventional norm and turned into “a prurient interest.” (Nerdy side note: in statistics terms, would that be two or three deviations from the mean? Would it be 95% or 97%? Would the prurient interests exist in the remaining 5% and/or the 2%?)

But exactly what a “prurient interest” was was never defined further.

Years later, this one was also responsible for Justice Potter Stewart’s now-famous quote on obscenity: “I’ll know it when I see it.”

– The Miller Test, 1973

Here, the Supreme Court Justices got slightly more specific as they struggled to define obscenity. Here are the three main points:

(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

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

In layman’s terms, this would be:

a) Is it creepy, disgusting and/or explicit (according to your vanilla friends and neighbors)?

b) Does it run afoul of state law?

c) Is it worth anything to the greater good/society?


I love how all of these descriptions are so vague. Seriously, no one can define obscenity. What’s “prurient” to one person may be perfectly standard to another. But then, studies have shown that there’s not really such a “normal” fantasy, but there are varying degrees along the spectrum. And I’m willing to bet it’s the same with defining obscenity.


#ThrowbackThursday: The Comstock Act, 1873

The New York Society for the Suppression of Vice seal (Loyno)

The New York Society for the Suppression of Vice seal (Loyno)

Praise be for mail-order sex toys. We wouldn’t have that option if the Comstock Act was enforced.

Enacted on Mar. 3, 1873, the Comstock Act (named after the bill’s cheerleader/goody-two-shoes Anthony Comstock) made it illegal to send sex toys, erotica, and items used in abortions, as well as information pertaining to said items, through the U.S. Postal Service. All of these things were classified as “obscene, lewd or lascivious.” The full title of the act was “The Act for the “Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use”. (What a mouthful, no wonder it was cut down to the Comstock Act.)

But what exactly was banned was a bit confusing. In some cases, medical textbooks showing basic human anatomy weren’t allowed to be sent through the mail. Because of this, the Act was understandably difficult to enforce. Though it remains on the books today, aspects of it have been torn down.

Thank god, because I can’t imagine a world where Adam & Eve, The Pleasure Chest and countless other retailers aren’t allowed to exist and flourish, and send us hours of pleasure packed in a brown-paper-wrapped box labeled with discreet shipping.