The topic of “obscenity,” pornography, and the regulation of sexually explicit materials has been steadily discussed by courts on all levels for dozens of years. This issue has only grown more complex as the access to controversial materials has significantly broadened due to the existence of the internet. Participants on one side of the spectrum of this age-old argument have referenced the constitution's protection of free expression to support their stance. They assert that placing too many restrictions will result in a violation of the First Amendment. While other, more conservative disputants write off sexually explicit materials as immoral and potentially dangerous and thus should be prohibited by state law.
Despite the compelling arguments made on both sides, the crux of this issue rests on the extent of the protection of the First Amendment. The reality of today is that the First Amendment doesn't protect speech that is deemed harmful. Materials that are labeled “obscene,” are perceived as excessively offensive in the eyes of each state and federal government.
In Pennsylvania, obscene materials are not to be sold, lent, distributed, and otherwise transferred in any fashion to another person. However, what characteristics classify materials as “obscene,” their distribution and the way they are exposed or distributed will determine the criminal penalties a person will face as a result of a conviction.
If you have been charged with a crime involving obscene material, your first step would be to retain a criminal defense attorney. A skilled attorney has the tools equipped to help you avoid a criminal conviction. Your second step would be to gain a comprehensive understanding of the offense. For the purposes of this article, we will examine (1) the definition of an “obscene material” as provided in Pennsylvania statutes, (2) the restrictions in place for these materials, and (3) the penalties associated with this offense.
Obscene Material Laws in Pennsylvania
As indicated above, the First Amendment doesn't protect speech and other forms of expression that are obscene. A material is considered obscene if it contains all of the following elements:
- It shows or describes sexual acts in an offensive way,
- It predominantly appeals to prurient interests (the average person would consider it lewd) based on contemporary community standards, and
- The material doesn't have any actual literary, artistic, scientific, or political value
This definition is vague and relatively subjective. The use of the term “community standards” has caused confusion in courts, as attorneys have posed the question of whether national or local standards were to be applied in these cases. Legal professionals have also questioned how a material's value is determined. Overall, the law surrounding obscene materials is complicated, and charged persons will need an attorney to help sort out these charges.
Obscene Material Charges
According to Pennsylvania statutes, it is illegal for an individual who is aware of the obscene character of the materials or performance involved to do the following:
- Display or permit the display of explicit sexual materials in newsstands, windows, display racks, billboards, movie screens, showcases, or similar places where they are visible to the public, or in businesses, where people under the age of 18 can see them
- Lend, sell, distribute, transmit, exhibit, give away aware or display obscene materials to someone 18 or order, or offer to do so (there's also a law that prohibits people from showing these materials to minors also)
- Write, public, print, utter, or cause the obscene materials to be written, publicized, printed or uttered for the purposes of being purchased or obtained
- Produce, direct, or present any obscene show, movie or performance or participate in a portion of one
- Knowingly take or deliver obscene materials to a correctional facility, or permit them to enter if you are an employee
- Hire, employ, use or permit a minor to partake in displaying, creating or selling obscene materials
- Sell a ticket to,, admit a minor to, a show, performance, or movie with nudity, sexual conduct or sadomasochistic abuse, unless they are accompanied by a parent
- Disseminate ads for unsolicited explicit sexual material through electronic communication (the internet, texting, emails, etc.)
- Advertise explicit materials via electronic communication without including “ADV-ADULT” at the beginning of the subject line
It's important to note the state of Pennsylvania does not regulate what people are allowed to do within the privacy of their homes. Adults who watch sexually suggestive materials in private are protected under the First Amendment. However, there are facets of obscenities that are outright unacceptable in all settings. Child pornography is an obscenity that is prohibited altogether.
If you are caught doing any of the above, you may be charged with either a first-degree misdemeanor or a third-degree felony depending on the circumstances. From my experience, the owners and employees of adult video and bookstores run a high risk of obscene material charges due to their proximity to these materials. If law enforcement decides to crack down, they will not only be prosecuted, but they will have to deal with the loss of their business.
Philadelphia Criminal Defense Attorney
If you have been charged with an obscene materials offense, it is crucial that you immediately contact an attorney. A skilled legal professional will be able to help you identify the nature of your offense, and inform you as to what you will be up against in this impending legal process. As it's been stated several times in this piece, obscene material laws are complex, and as a result, they're rarely charged. Joseph D. Lento has worked with people who have acquired both misdemeanor and felony obscene material charges and has helped them prevail in court. He can do the same for you. Contact him today for assistance.