What are North Carolina's Obscenity Laws?

Obscenity laws are a hotly debated topic that calls into question for their constitutionality and lack of applicability to the digital social media era. Some of these laws have been rather decisively shot down as unconstitutional by the U.S Supreme Court, while others remain in more of a gray area or are definitively sex crimes due to lack of consent. These laws demonstrate a clear conflict with the personal-freedom philosophies written in our constitution and the traditional and puritanical values that persisted in American culture. On one hand, most modern interpretations of human rights law treat a sexual or obscene act as criminal when it lacks consent, whether through force, coercion, or other forms of exploitation. On the other hand, traditional values favor a notion of normalcy and morality that centers religious or personal beliefs over liberal principles of punishing crimes with victims.

As this set of laws include crimes that are based in subjective morality and others that are based on real harm and lack of consent, understanding and interpreting them is quite challenging. In this article we will discuss what obscenity means, its constitutional challenges, and obscenity laws in North Carolina.

a woman with a shocked facial expression, as if she had seen something obscene

What does Obscenity Mean?

Before getting into the laws in North Carolina that deal with obscenity and public morality, we should first discuss what obscenity means. Unfortunately, this is not a straight-froward task, as obscenity is legally defined in a completely vague manner ― perhaps intentionally so, in an effort to preserve archaic laws without obviously violating freedom of expression.

The federal government reserves the right to consider obscenity to be something that is not protected by freedom of speech, yet it fails to define much else about it consistently. Even in the supreme court case Jacobellis v. Ohio, justice Potter Stewart famously proclaimed:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Leaving obscenity in such vague terms has lead to it being heavily contested and redefined over the years following many supreme court cases. These definitions followed “tests” for determining whether something is obscene. The most recent test, called the Miller test based on Miller v. California (1973) is adopted in both Federal and North Carolina laws. This test states that something is obscene if all of the following are true:

  • The material depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
  • The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to excessive sexual interests.
  • The material lacks serious literary, artistic, political, or scientific value.
  • The material as used is not protected or privileged under the Constitution of the United States (or Constitution of North Carolina).

If this all sounds vague and confusing to you, don’t be too hard on yourself, it is troubling to experienced lawyers as well. This definition continues to be challenged by lawsuits and raises several questions, such as the following:

What are "Contemporary Community Standards" in the Internet Age?

The notion of a law being based on the subjective pulse of a person’s environment is troubling enough on its own in what should be a free society with due process. The internet age makes this no easier, as much of what could be considered “obscene” is distributed via the internet, where people all over the world with different mentalities can judge it. This has troubled supreme court justices, including Sandra Day O’Connor who proposed that a national standard would be necessary for any reasonable regulation of internet obscenity.

What is "Serious" Literary, Artistic, Political, or Scientific Value?

It is not clear who gets to determine or assign the value to something in terms of its literary, artistic, political, or scientific value. In Pope v. Illinois (1987) the Supreme court determined that such value should be be assigned based on contemporary community standards. Instead, it should be based on the “objective” or reasonable person test. This in essence means it would be based on what a “reasonable person” might consider the value of the work. The main difference this may introduce is give defendants a better chance of demonstrating the value of their work, or push prosecution to specifically argue against the work’s value. Ultimately, this is still very subjective.

How is Something Determined to be "Patently" Offensive?

When is something “patently” or clearly offensive? Once again, this sounds highly subjective. Unfortunately, we do not have a clear answer to this. Even worse, any definition provided seems to draw a big circle, basing it on community standards and the perceived lack of literary, artistic, political or scientific value. The phrase “patently offensive” almost sounds as absurd as “objective subjectivity”. The best interpretation once again goes back to what most reasonable people would consider offensive. 

What has or has not been Considered Obscene?

The best way to understand what may or may not be considered an obscenity is to look at court precedent. We discussed several broad supreme court cases on obscenity above, though there are many more dealing with specific kinds of works:

  • American Booksellers Association v. Hudnut (1985): ruled that pornography depicting adult women in sexually subordinate roles is not obscenity.
  • Arcara v. Cloud Books, Inc (1986): ruled that sexual activity in a privately owned adult bookstore violated public health laws.
  • Ashcroft v. American Civil Liberties Union (2004): Blocked part of the 1998 Child Online Protection Act which made it a crime for commercial websites to knowingly place material that is “harmful to minors” in their unrestricted reach.
  • Ashcroft v. Free Speech Coalition (2002): the court struck down portions of the federal Child Pornography Prevention Act that banned “virtual child pornography”. “Virtual child porn” was defined too broadly as something depicting what “appears to be” or “conveys the impression” of a minor engaging in sexually explicit conduct. The court determined this neither qualifies as child porn nor obscenity.
  • Butler v. Michigan (1957): ruled that a potential harmful influence on youths is not enough to prove obscenity and make it illegal for adults to sell or use printed material with such obscenity.
  • Lawrence v. Texas (2003): A landmark ruling that struck down sodomy laws, which criminalized homosexual conduct and non-vaginal intercourse, as unconstitutional violations of due process.

Today, legal precedent dictates that most kinds of pornography (excluding those that involve or portray children or any non-consenting party) is not obscene. While the laws still remain vague and suggest a great deal of material is illegal, for the most part obscenity 

North Carolina's Obscenity Laws

As North Carolina follows the above definition of obscenity, it can be difficult to nail down what may or may not be considered an obscenity. North Carolina case law has given us some additional caveats, such as:

  • Obscenity must involve sexual conduct. No matter how offense the material may be, if it is not sexual, it is not obscenity.
  • The sexual conduct must be “prurient interest” which means a shameful or morbid interest, rather than a normal, healthy interest.
  • If the obscenity is directed toward children or for child audiences, it will be judged with reference to ordinary children, not adults.
  • In North Carolina v. Mueller (2007), a witness testimony describing the material alleged to be obscene could be enough to convict someone without showing the material itself. It is however, important to note that in this case, Mueller was also found guilty of 33 sex offenses against his own daughter, including rape, so it is unclear whether a case of obscenity alone could be prosecuted with just a witness testimony.
  • Cinema I Video, Inc v. Thornburg (1986): Material in one’s own home was found to be constitutionally protected.

This brings us to the variety of laws criminalizing obscenity:

Advertising, Creating, Possessing and Disseminating Obscenity

A person is guilty of this offense when they intentionally disseminate obscene material, or advertise, create, or possess obscene material with the intent to disseminate it unlawfully. By “intentionally”, the person must know the character of the material or performance they are sharing. The punishment for this crime is a Class I Felony.

While North Carolina has separate statutes for disseminating obscene material to minors, one for minors under 16 and another for minors under 13, both are punished as a Class I Felony as well. The key difference here is that obscenity may be judged in reference to what is obscene to a child audience, not adults.

Using a Minor to Assist in an Obscenity Offense

A person is guilty of this offense when they are an adult and intentionally hire, employ, permit, or use a minor under the age of 16 to assist or commit an obscenity offense. This includes involving them in selling obscene material or in an obscene performance, where the person knows or reasonably should know the material is obscene. The punishment for this crime is a Class I Felony.

What is obscene may be judged in reference to a child, not an adult. It is unclear where mistaking the age of the child is a valid defense.

Disseminating Material Harmful to Minors

North Carolina law has an additional phrase, “material harmful to minors” for obscenity relative to minors. The definition is almost identical to obscenity, but with reference to what would be obscene to a minor rather than an adult. As you may expect, the standards for obscenity will be more strict for a minor, who are generally shielded from exposure to sexual material. Like obscenity, this would not apply to material that holds literary, scientific, political, or artistic value, so nude health diagrams or plain nudity in museum artworks are not considered harmful.

A person is guilty of this offense when they sell, distribute or present such material to a minor, or in a way that allows a minor to review or peruse it. In essence, this crime is similar to disseminating obscenity, but may include circumstances where material that is fine for adults to view but obscene for children is offered to minors. The punishment for this crime is a Class 1 misdemeanor.

Displaying Material or Exhibiting a Performance Harmful to Minors

Following the same phrase as above, this crime involves displaying such material at a commercial establishment or in a live performance that is open to view by minors. A person is guilty of this crime when they have control or supervision over a commercial establishment that is open to the general public, including minors, which displays “material harmful to minors”, knowing the character of the material. The punishment for this crime is a Class 2 misdemeanor.

For example, this could include knowingly displaying sexually explicit content at a storefront that children will walk past. While such content may not be obscene to adults, it may be to minors. It can also include staging a live performance with explicitly sexual material while not restricting minors from viewing it.

Laws Related to Obscenity in North Carolina

In North Carolina, obscenity laws fall under the broad chapter for “Offenses Against Public Morality and Decency”, which include a wide range of actions, from acts that involve a non-consenting victim to those that do not. All of the laws discussed below do still exist on the books, but some have been subjected to a great deal of change in enforcement and interpretation.

Criminalizing Violations of Consent is Constitutional

The sections of North Carolina’s Public Morality and Decency laws that deal with violations of consent do not have as significant constitutional challenges, at least not in terms of whether such actions should be a crimes. As these crimes have a victim, there is a legitimate government interest in investigating the private lives of those involves and prosecuting the harmful act.

In North Carolina, most crimes against public morality and decency are sex crimes, but there are sex crimes outside this category and non-sex crimes within. We have written about each of these sections in detail on our blog:

  • Disclosure of Private Images: Also known as “Revenge Porn”, which is when somebody shares private images or videos of an intimate partner without their consent to cause them harm.
  • Incest with Children: When a parent or other relative engages in incestuous activity with a related child.
  • Indecent Exposure: Willfully exposing one’s genitals to others in a public place where exposure is not lawful. There are several nuances and exceptions, but the essence is that exposing oneself to a non-consenting person is a crime.
  • Indecent Liberties: Committing lewd acts on children, who are not considered capable of consent.
  • Obscene Harassment and Cyber-stalking: Harassing others and using obscene language or threats in a persistent and threatening manner. Cyber-stalking and harassment can be of an obscene or sexual nature, but can be non-sexual as well.
  • Peeping: Viewing or taking photos or videos of somebody in a private setting, such as a changing room or restroom. This can be for the purpose of sexual gratification, but this is not a necessary element for all peeping crimes.
  • Sexual Exploitation of Minors: Possessing, distributing or creating any form of child pornography.

While there are certainly some nuances to some of the above, such as when harassment can be protected by the first amendment, overall prosecution of the above is constitutional. There are other sections of this law that have either been deemed unconstitutional or have some significant constitutional challenges.

Constitutionality of "Crimes Against Nature" and Related Offenses

“Crimes Against Nature” is a dated legal term, referring to sexual intercourse ore relationships that does not have potential for or entail procreation. This meant extramarital affairs, oral sex, anal sex, and fornication. These laws have been challenged for many years and seldom enforced, but after the Supreme Court deemed sodomy laws unconstitutional in Lawrence v. Texas, they face a great legal challenge.

Oddly, in North Carolina these laws still exist, and have even been ruled as “not unconstitutional on its face”, but only because they can also be used to criminalize actual illegal sexual activity that involves lack of consent, minors, coercive acts, public conduct, and prostitution. In essence, the laws were preserved but can no longer be used to punish what was once considered “sodomy”. Related offenses have yet to be challenged, though are not always enforced, such as:

  • Adultery: North Carolina is one of few states where adultery (i.e. cheating on one’s spouse) is a crime, with the penalty of a class 2 misdemeanor. However, it is rarely prosecuted and more commonly comes up in divorce court and custody battles.
  • Bigamy: Marrying another person while still married to another living and present spouse is a class 1 felony in North Carolina. This usually is only prosecuted for intentional polygamous marriages or fraudulent marriages.
  • Incest between adults: While an adult committing incest against a child is already a crime based on statutory rape laws, family incest between adults is a class F felony. This applies to siblings, parents, grandparents, aunts and uncles, as well as adopted or half-siblings, but not cousins.

Defending Obscenity Charges

Given how confusing obscenity is, defending these cases can get fairly complicated and rely a great deal on researching related cases to draw on legal precedent. Essentially, because the law is vague, lawyers dealing with such cases need to spend a great deal of time reviewing related cases. This means that your greatest shot at getting these charges dropped or dismissed is hiring an experienced attorney. There have been several cases all over the country where obscenity charges get dropped at the first sign that the defendant contests it with an experienced attorney. However, the prospects of these charges being brought into court will depend on many other factors, such as:

  • Is the defendant facing a lone-standing obscenity charge, or an indictment with numerous related and more serious sex crimes? If there are other sex crimes, fighting these charges will be more challenging all together.
  • Does the crime involve adults or minors? People tend to be more protective of minors when it comes to displays of sexual content.
  • What are the moral standards of your community? A more conservative community will have stricter standards for what is obscene.
  • Can the material be shown in court or will it need to be described by witnesses? This could go both ways, as a description may be worse than the real thing, but not having the real thing means the witnesses could be discredited.

If you are facing any obscenity charges, you should get in contact with an experienced lawyer to review your case and candidly discuss what the best method of approach should be. The attorneys at Polk Law have the skills and credibility it takes to fight these charges, and work closely with our clients to make sure they fully understand how we believe the issue should be approached and what the outcomes could be. In any case, we put our client’s best interests first. If you want to schedule a consultation with us, simply fill out the contact form below or give us a call and we will get back in touch soon!

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