By its very nature, obscenity has a variable definition. Criminal lawyers need to keep this in mind. As the prevailing norms in the community change, so will the types of materials that are considered obscene. Consequentially, jury verdicts can vary from time to time.
When a person is on trial for possession of obscene materials, the judge will instruct the jury in the definition for obscenity that they are to apply.
First, to fall within the definition of “obscene,” the dominant theme of the materials in question must depict or describe sexual conduct in a patently offensive way. In other words, the materials must offend the contemporary community standards of the county in which the case is being prosecuted.
However, not all depictions or descriptions of sex go beyond customary community standards of decency to be considered “patently offensive.”
Second, for a jury to find that the materials in question were obscene, they must find that the materials, when taken as a whole, do not have any serious literary, artistic, political, or scientific value. As was mentioned on the previous page, the Florida Legislature intended for only certain types of sexual imagery to be considered obscene. At the same time, it did not want to criminalize legitimate expressions of literature, art, politics, or science simply because they include depictions of sexuality in one form or another.
However, that does not mean that by adding an element of literature, art, politics, or science to obscene materials makes them any less obscene. If the primary intent of the material in question is to appeal to the “prurient interest,” then the mere addition of literature, art, politics, or science is considered irrelevant to the dominant theme.
It would be up to the jury to determine whether or not the prosecution has proved beyond a reasonable doubt that a specific material or item had a dominant prurient them that only tangentially included aspects of literature, art, politics, or science.
However, as a criminal lawyer, I must emphasize that any material that is a serious piece of literary, artistic, political, or scientific work is absolutely protected by the First Amendment to the United States Constitution and is under no circumstances to be considered obscene.
The following is the most important aspect of this jury instruction because it addresses pornography without saying so directly. At the end of a trial for possession of obscene materials, the jury will be read the following word-for-word:
“Sex can be a legitimate subject for literature, art, scientific inquiry, or political argument, an such serious treatments of sex, even if appealing to the prurient interest and patently offensive, cannot be obscene.”
Not only does this include pornography that is in photographic or movie content, but intimate literature. Equally protected are scientific studies that concern the explicit details of sexuality, such that they may be considered prurient and patently offensive.
For example, it would not be obscene to possess a book on sexual positions or how to best give one’s partner orgasm. Clearly such subjects are prurient and would likely be considered offensive, but they are not legally obscene. Therefore, possession of such materials would not qualify within the type of conduct criminalized as possession of obscene materials under Florida Law.
Again, as a criminal lawyer it is important to emphasize that contemporary norms vary from generation to generation and community to community. What may be considered obscene in central Florida may be considered common place in Miami Beach.
Ultimately, my experience as a criminal defense lawyer has taught me a simple concept: apply common sense. If the materials in question are legit pieces of literature, art, political expression or science, then they are not obscene. If the materials fall outside of that category then the defendant may have a problem.