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OBSCENE, OBSCENITY

Such indecency as is calculated to promote the violation of the law and the general corruption of morals.

The exhibition of an obscene picture is an indictable offence at common law, although not charged to have been exhibited in public, if it be averred that the picture was exhibited to sundry persons for money.

For something to be "obscene" it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find (1) that the work appeals predominantly to "prurient" interest; (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value.

An appeal to "prurient" interest is an appeal to a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex.

The first test to be applied, therefore, in determining whether given material is obscene, is whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole, or the prurient interest of members of a deviant sexual group, as the case might be.

The "predominant theme or purpose of the material, when viewed as a whole," means the main or principal thrust of the material when assessed in its entirety and on the basis of its total effect, and not on the basis of incidental themes or isolated passages or sequences.

Whether the predominant theme or purpose of the material is an appeal to the prurient interest of the "average person of the community as a whole" is a judgment which must be made in the light of contemporary standards as would be applied by the average person with an average and normal attitude toward, and interest in, sex. Contemporary community standards, in turn, are set by what is accepted in the community as a whole; that is to say, by society at large or people in general. So, obscenity is not a matter of individual taste and the question is not how the material impresses an individual juror; rather, as stated before, the test is how the average person of the community as a whole would view the material.

In addition to considering the average or normal person, the prurient appeal requirement may also be assessed in terms of the sexual interest of a clearly defined deviant sexual group if the material was intended to appeal to the prurient interest of such a group as, for example, homosexuals.

The second test to be applied in determining whether given material is obscene is whether it depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals measured against whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the generally accepted limits of candor as to be clearly offensive.

Contemporary community standards, as stated before, are those established by what is generally accepted in the community as a whole; that is to say, by society at large or people in general, and not by what some groups of persons may believe the community as a whole ought to accept or refuse to accept. It is a matter of common knowledge that customs change and that the community as a whole may from time to time find acceptable that which was formerly unacceptable.

The third test to be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it portrays explicit sexual conduct.

All three of these tests must be met before the material in question can be found to be obscene. If any one of them is not met the material would not be obscene within the meaning of the law.

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