by   |  05.29.09  |  Obscenity and Pornography, Supplemental Information



By Charles Marler

The weight of scripture identifies the issues of obscenity, pornography and indecency with thought and behavior that we clearly abhor:

Slander Murder
Lust Lewdness
Idolatry Adultery
Homosexuality Immodesty
Impurity Debauchery
Sensuality Habitual, “continual lust for more”
Greed or selfishness Degradation of our bodies
Premise No. 1: So the oft-repeated rationalization that erotica – obscenity, pornography and indecency – claims no victims – is behavior that hurts no one – falls on proverbial barren land when approached with open analysis in light of scriptural principle.

Premise No. 2: God created man and woman with four characteristics: (a) a sexual nature to be enjoyed in the context of His will, (b) ability to make moral-ethical choices,
(c) responsibility to use scriptural principle as guideposts for choices, and (d) accountability for rejection of His principles.

Premise No. 3: The Christian cannot sustain the Absolutist Theory of the First Amendment in light of scriptural principle. This approach wipes out the role of scriptural guidance and ethical, moral self-control.

Premise No. 4: The Christian who subscribes to the Marketplace of Ideas Theory of the First Amendment can go into the market and tactfully argue that (a) obscenity harms women, men and children, (b) the best answer lies in understanding God’s purpose for sexuality, (c) scriptural principle, ethics, morality and self-control are superior to absolutism, animalism and “continual lust for more.” The Christian Marketplace of Ideas Theorist also is free to reject erotica in all of its manifestations without compromising his or her theoretic approach to the First Amendment; we cannot eliminate the purveyor and his or her pandering; we cannot abolish the temptation; we can, however, within the protections of the First Amendment, reject erotica in all its forms and fight the purveyor in the Marketplace of Ideas and in the court of law.

Premise No. 5: Lust is Satan’s tool; he wants you addicted to pornography.


Prov. 6:25 “Do not lust in your heart after her beauty or let her captivate you with her eyes ….”
Ezek. 22:9 “In you are slanderous men bent on shedding blood; in you are those who eat at the mountain shrines and commit lewd acts.”
Ezek. 24:13 ” ‘Now your impurity is lewdness. Because I tried to cleanse you but you would not be cleansed from your impurity, you will not be clean again until my wrath against you has subsided. …”
Matt. 5:28 “But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart.”
Rom. 1:24 “Therefore God gave them over in the sinful desires of their hearts to sexual impurity for the degrading of their bodies with one another.”
1 Cor. 12:23 ” … and the parts that we think are less honorable we treat with special honor. And the parts that are unpresentable are treated with special modesty, …”
2 Cor. 12:21 “I am afraid that when I come again my God will humble me before you, and I will be grieved over many who have sinned earlier and have not repented of the impurity, sexual sin and debauchery in which they have indulged.”
Gal. 5:19 “The acts of the sinful nature are obvious: sexual immorality, impurity and debauchery; ….”
Eph. 4:19 “Having lost all sensitivity, they have given themselves over to sensuality so as to indulge in every kind of impurity, with a continual lust for more.”
Eph. 5:3 “But among you there must not be even a hint of sexual immorality, or of any kind of impurity, or of greed, because these are improper for God’s holy people.”
Col. 3:5 “Put to death, therefore, whatever belongs to your earthly nature: sexual immorality, impurity, lust, evil desires and greed, which is idolatry.”
1 Pet. 4:3 “For you have spent enough time in the past doing what pagans choose to do – living in debauchery, lust, drunkenness, orgies, carousing and detestable idolatry.
2 Pet. 2:10 “This is especially true of those who follow the corrupt desire of the sinful nature and despise authority. Bold and arrogant, these men are not afraid to slander celestial beings; ….”
1 John 2:16 “For everything in the world – the cravings of sinful man, the lust of his eyes and the boasting of what he has and does – comes not from the Father but from the world.”

What can be prohibited and punished in the U.S.?

In General

• Work that the average person, applying contemporary community standards, find as a whole, appeals to prurient interest (Miller v. California, 1973).
• Work that depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law (Miller).
• Work taken as a whole that lacks serious literary, artistic, political or scientific value (Miller).
• Patently offensive depiction or descriptions of ultimate sex acts – normal or perverted (bestiality, homosexuality, sadomasochism, etc.), masturbation, excretory functions, and lewd exhibition of genitalia (Miller and Mishkin, 1966).
• Work to be judged by a reasonable person, not community standard, to lack Miller values (Pope 1987).
• Jury does not have “unbridled discretion” in the application of “community standard” (Jenkins v. Georgia, 1974).
• Work not inherently obscene simply because nudity is included (Jenkins).
• Work not obscene based on attitudes of most sensitive persons or isolated passages of material (Miller)


• “Pandering” – advertising or marketing – of sexual material can be prosecuted if purveyors fail to protect unwilling recipients’ rights (Ginzburg v. U.S., 1966)
• Pandering can be determining issue in close cases, which relieves state of proving obscenity (Ginzburg).
• Pandering Advertisement Act of 1969 permits U.S. to stop porn at mailbox of unwilling addressee.
• Pandering to minors may create criminal liabilities (American Bookseller v. Webb, 11th Circuit, 1990).

Prior Restraint

• Obscenity is one of four categories of permissible prior restraints in Near v. Minnesota (1931).
• Prior restraints can be used to ban erotic books and films without judicial safe-guards (Bantam Books, 1963, and Freedman v. Maryland, 1965).
• “Any system of prior restraints comes to the court carrying a heavy burden of presumption against its constitutionality” (Bantam Books)

Procedural Issues

• Search warrants can be used to seize allegedly obscene materials, but warrants must be narrowly drawn and seizure probable cause must exist (Lo-Ji Sales, 1979).
• Persons who knowingly sell or circulate obscene material – scienter – can be prosecuted (Hamling)
• Conviction of individual who simply possessed obscenity at home struck (Stanley v. Georgia, 1969).
• U.S. Customs officials can seize erotic material at the nation’s point of entries (37 Photographs).
• The government can entrap a citizen into buying erotic or obscene material (Jacobson v. U.S., 1992).
• Obscenity convictions may form basis of conviction under Racketeer Influenced and Corrupt Organization Act (RICO and Fort Wayne Books v. Indiana, 1989).
• Government can confiscate all assets of purveyor when he or she is convicted under the RICO Act.


• Indiscriminate bans of films unconstitutional (Burstyn v. Wilson, 1952).
• Review boards can be used by cities or states if procedural safeguards, including expeditious judicial review and use of the Miller test, is utilized (Freedman v. Maryland, 1965, and Miller).
• Prior restraint of films can be exercised if the content was determined to be legally obscene through appropriate due process (Times Film Corp v. Chicago, 1961, Freedman and Miller).
• Nudity alone is not enough to cause a film to be categorized as legally obscene (Jenkins).
• Cities can not forbid the showing of movies that include nudity at drive-in theaters where screen is visible from street on a traffic safety justification (Erznoznik v. Jacksonville, 1975).
• Stage
• Nudity city-owned or controlled stages can be prohibited before a judicial finding of obscenity in spite of the Forum Theory (Southeastern Promotions v. Chattanooga, 1975).


• States can outlaw the sale of erotic material to juveniles without a determination of the lawfulness of the material under the “variable obscenity” concept (Ginsberg v. New York, 1965).
• Prosecutors don’t have to meet the Miller test in cases involving child actors in pornography because kiddie porn is outside First Amendment protection even if it cannot be found obscene (Ferber, 1982).
• Children can be included in the determination of community standard, but the inclusion is not mandatory (Pinkus).
• Broadcast or cablecast of “filthy words” – profanity and obscenities – can be prohibited before late night under a “variable indecency” concept because of children in the audience (Pacifica v. FCC 1978).
• Use of children in porn can be punished with $10,000 to $100,000 fine on first offenses and $15,000 to $200,000 for subsequent offenses (Child Protection and Obscenity Enforcement Act, 1984).
• Possession of child pornography, even in one’s home, can be punished (Osborne v. Ohio, 1990)
• Communications Decency Act, which banned “indecent transmission” and “patently offensive” material from the Internet, overturned (Reno v. ACLU,1997).
• The Child Online Protection Act can not keep “materials harmful to minors” off the Web (Ashcroft v. ACLU, 2002).
• “Virtual porn” can not be banned by the Child Pornography Prevention Act (Ashcroft v. Free Speech Coalition, 2002.

U.S. Postal Service

• USPS can deny second class mailing privileges to erotic material (Hannegan, 1945).
• USPS can ban material from mail if mailer was aware of nature of content and government has proved that the material is obscene (Manual Enterprises, 1962).
• USPS can stop erotica because “a mailer’s right to communicate must stop at mailbox of the unreceptive addressee” (Pandering Advertisement Act, 1968; Rowan v. U.S. Post Office, 1970, and Struthers )
• If material is found legally obscene in judicial proceedings, the government can prosecute the mailing to willing recipients (U.S. v. Reidel, 1971).
• Unwilling recipients can get off mail list even before receiving a mail by completing a form at a local post office (Goldwater Amendment to Postal Reorganization Bill).


• Nuisance ordinances can be used to “enjoin further exhibition of specific … [works] that have been fully adjudged to be obscene after full adversarial hearing” (Paris Adult Theatre, 1976).
• State can use public health Nuisance Statute to close business when prostitution or lewdness has taken place on premises (Arcara v. Closed Books, 1986).
• City can use nuisance ordinance to close shops for future exhibitions of unnamed obscene movies (Vance v. Universal Amusement, 1980).
• Zoning ordinance can be used to disperse adult shops and theaters 1,000 feet from residences, churches, parks or school (American Mini Theatres, 1976).
• Zoning ordinances can be used to locate adult businesses in economically depressed areas because of secondary effects rather than content effects (Renton, 1986),
• Cities cannot justify bans of violent erotic material because it violates women’s civil rights (Hadnut, 1986).
• Cites can ban adult businesses from locating less than 1,000 feet from one another (Los Angeles v. Alameda Books Inc. et al., 2002).

Electronic Media

• “Safe harbor” concept protects indecent but not obscene material late at night on broadcast media.
• Cable sex can be regulated if Miller is observed in regulation and prosecution (Cruz v. Ferre, 1983).
• Federal government can’t ban obscene dial-a-porn (Sable v. FCC, 1989).
• Federal government can ban indecent dial-a-porn (Sable).
• States can ban obscene cable (Jones v. Wilkinson, 1986)
• States can ban indecent cable (Wilkinson).
• Cities can ban indecent cable (Denver v. FCC, 1996)
• Federal government can not ban indecent content on Internet (ACLU v. Reno, 1996)