Legal Periodical: Comparative Legal Approaches to Pornographic Obscenity by the United States and the United Kingdom
Two Nations, One Web: Comparative Legal Approaches to Pornographic Obscenity by the United States and the United Kingdom
William T. Goldberg, 90 B.U. L. Rev. 2121 (2010)
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Modern American obscenity law has developed over a period of approximately fifty years. 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. If that trier of fact deems those materials obscene, then the producer or distributor of such materials may face fines or imprisonment. The application of the community standards test has been refined, but never fully clarified. 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 imposing a strict liability offense for possession of ‘extreme pornography.’ Until this change, U.K. and U.S. obscenity laws were very similar, but this new Act imposes greater individual responsibility on consumers of such depictions, and also provides a far more precise definition of the prohibited materials. Part Three attempts to reconcile the tensions in U.S. law with the changes in U.K. law. The discussion focuses on the divergence in the laws and the consequence, if any, such divergence could, or should, have on American obscenity law.