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Possession of Obscene Materials

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Under federal law, it is unlawful to distribute, receive, import, transport, produce, or sell obscene material. It is also against the law to possess material labeled as obscene if the person has the intent to sell or distribute it. However, it can be difficult to determine what qualifies as obscene, so if you were charged with possessing or selling obscene material, it is critical to contact an experienced federal crimes attorney who is familiar with federal case law and can help you formulate a defense.

Prohibited Conduct 

Federal law makes it a crime to:

  • Possess obscene material with the intent to sell or distribute it;
  • Send, ship, or receive obscene materials;
  • Import obscene materials;
  • Transport obscene materials across state boundaries;
  • Produce obscene matter with the intent to sell or distribute it;
  • Engage in the business of selling or transferring obscene matter using interstate or foreign commerce, which includes the use of interactive computer services (i.e. the internet);
  • Broadcast or distribute obscene material via radio communication or by cable or subscription television; and
  • Aid or abet in the commission of the above offenses;

Although it is not technically a crime to have obscene materials in one’s private possession, a person can be charged with receiving it if it was sent via the U.S. mail, common carriers, or interactive computer services. Those who are convicted of this offense face up to two years in prison and hefty fines. When the material involves a minor, the sentence is increased to ten years and the defendant may be required to register as a sex offender.

What Qualifies as Obscene Material? 

Over a period of two decades, the U.S. Supreme Court created a test that judges and juries can use to determine whether material is obscene. According to the Court’s opinions, a judge or jury must ask the following questions to determine whether material qualifies as obscene. If material satisfies the following three prong test, it will satisfy the federal definition of obscene:

  • Whether the average person, applying contemporary standards, would find that the material taken as a whole, appeals to an erotic, lascivious, or degrading interest in nudity, sex, or excretion;
  • Whether the average person finds that the matter depicts or describes sexual conduct in a patently offensive way, which includes showing ultimate sexual acts, lewd exhibition or sexual abuse; and
  • Whether a reasonable person finds that, taken as a whole, the material lacks serious literary, artistic, political, or scientific value.

Because so much hinges on this test, it is critical for defendants charged with possession of obscene materials to retain an experienced attorney who is familiar with its application and can collect evidence to combat the prosecutor’s allegations.

Call a Dedicated Florida Federal Crimes Attorney  

Obscenity convictions come with severe consequences, so if you are facing this type of charge, please contact Jeffrey S. Weiner, P.A., Criminal Defense Attorneys in Miami by calling 305-670-9919 to speak with a federal crimes attorney about your case. You can also reach us by initiating a live chat with a member of our legal team.

Resource:

https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-obscenity

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