The Ins and Outs of Obscenity Law in New Jersey: Understanding the Legal Boundaries of Free Speech and Expression

The United States Constitution guarantees the freedom of speech and expression as one of the fundamental rights of every individual. The First Amendment protects our right to speak our minds, to express our opinions, and to communicate our ideas, without fear of censorship or punishment from the government. However, this right is not absolute, and there are limits to what we can say and how we can say it. One of these limits is obscenity law, which restricts certain kinds of speech and expression that are deemed offensive, indecent, or harmful to society.

Obscenity law is a complex and controversial area of law, and it varies from state to state. In New Jersey, obscenity law is governed by state and federal statutes, as well as by court decisions. It is important for New Jersey residents to understand these laws and their legal boundaries, so they can exercise their right to free speech and expression while staying within the limits of the law.

What is Obscenity?

The first question to address is what is obscenity? Obscenity is generally defined as speech or expression that is offensive, indecent, or lewd, and that lacks literary, artistic, political, or scientific value. However, the definition of obscenity is subjective and varies depending on the community standards of the locality. What may be considered obscene in one place may not be obscene in another.

The United States Supreme Court has established a three-part test to determine whether speech or expression is obscene. The test is known as the Miller test, named after the landmark case Miller v. California, 413 U.S. 15 (1973). The Miller test has three prongs:

1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable law; and
3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

This test is used by New Jersey courts to determine whether speech or expression is obscene and therefore unprotected by the First Amendment.

What is the Legal Basis of Obscenity Law in New Jersey?

Obscenity law in New Jersey is based on both state and federal statutes. At the state level, New Jersey has its own obscenity law, which is codified in Title 2C of the New Jersey Statutes. Section 2C:34-1 defines obscenity as "any material or performance which, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and which lacks serious literary, artistic, political, or scientific value."

At the federal level, the main law governing obscenity is the Child Protection and Obscenity Enforcement Act (CPOEA), also known as the Miller Act. This law makes it a federal crime to produce, distribute, or possess obscene material. The CPOEA also establishes the Miller test as the standard for determining whether material is obscene.

In addition to statutory law, obscenity law in New Jersey is also shaped by court decisions, especially those of the United States Supreme Court. As noted earlier, the Miller test is based on a Supreme Court decision, and subsequent Supreme Court decisions have refined and clarified the test over time.

What Types of Speech or Expression are Considered Obscene in New Jersey?

In New Jersey, speech or expression that is considered obscene is generally limited to three categories:

1. Pornography – Pornography is sexually explicit material that is intended for sexual arousal or gratification. Pornography may include photographs, videos, magazines, or other materials that portray sexual acts, nudity, or other sexually explicit conduct.

2. Lewdness – Lewdness is sexual conduct that is public, indecent, or offensive. This may include indecent exposure, public masturbation, or other sexually suggestive behavior in public places.

3. Child pornography – Child pornography is any material that depicts or portrays children engaging in sexual conduct. It is illegal under both state and federal law and carries severe criminal penalties.

It is important to note that New Jersey obscenity law applies only to material that is intended for sexual arousal or gratification. Material that is produced or distributed purely for educational, medical, or scientific purposes is not considered obscene.

What are the Legal Consequences of Engaging in Obscene Speech or Expression in New Jersey?

Engaging in obscene speech or expression in New Jersey can result in severe legal consequences. Depending on the nature and severity of the offense, individuals may face fines, imprisonment, and other penalties.

In general, the penalties for obscenity offenses are more severe when children are involved. For example, producing or distributing child pornography carries a mandatory minimum sentence of five years and a maximum sentence of 20 years in prison, and fines of up to $250,000.

In addition to criminal penalties, individuals who engage in obscene speech or expression may also face civil liability, such as being sued for damages by those who are harmed by the speech or expression.

What are the Defenses to Obscenity Charges in New Jersey?

There are several defenses that an individual accused of engaging in obscene speech or expression may use to defend against charges in New Jersey. The most common defenses include:

1. First Amendment – The First Amendment provides protection for certain types of speech and expression, including political and artistic speech. If the accused can demonstrate that their speech or expression is protected by the First Amendment, they may be able to avoid criminal charges. However, it is important to note that this defense is not absolute, and courts may still consider whether the speech or expression is obscenity.

2. Lack of intent – Obscenity charges require that the accused acted with the intent to produce or distribute obscene material. If the accused can demonstrate that they did not have the intent to produce or distribute obscenity, they may be able to argue that they did not commit a crime.

3. Duress – If the accused was forced to produce or distribute obscene material against their will, they may be able to use the defense of duress.

How Can New Jersey Residents Navigate Obscenity Law?

Navigating obscenity law in New Jersey requires individuals to be aware of their legal boundaries when engaging in speech or expression. This means being mindful of community standards, understanding the Miller test, and avoiding behavior that is considered lewd or offensive.

In addition, individuals should seek out legal advice from a qualified attorney if they are concerned that their speech or expression may be considered obscene. An attorney can help individuals understand their legal rights and provide guidance on how to avoid obscenity charges.

Conclusion

Obscenity law in New Jersey is a complex and controversial area of law that requires individuals to be aware of their legal boundaries when engaging in speech or expression. While the Constitution guarantees our right to free speech and expression, there are limits to what we can say and how we can say it. By understanding the legal standards of obscenity in New Jersey, individuals can exercise their right to free speech and expression while staying within the limits of the law.