In USC 18§1462 et al., are the definitions of "lewd," "filthy," etc. synominous with "Miller Test" obscenity?

Question

This question refers to US Code: Title 18, section 1462 ( http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001462----000-.html
), as well as similair laws in the same chapter ( http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I_20_71.html )

My question is, within that law and the other similair ones in the same chapter, are the definitions of "obscene," "lewd," "lascivious," "filthy," etc. synominous with obscenity under the Miller Test?

Thefore, if an item does *not* meet the Miller Test for obscenity, however objectionable it may be, it is exempt from being classified as "lewd," "filthy," etc. and therefore is *not* subject to the limits and penalties of these obscenity laws, correct?

I would guess so, as the title of the laws refer specifically obscenity. However, since I'm presently doing my best to avoid sick smut and excercise discretion in my internet surfing, I shouldn't worry about this. =)

Thank you in advance to anyone who replies. =)

To summarize my question: if an item isn't Miller Test obscenity, you aren't going to be penalized for knowingly importing it into the country via mail, accessing it on the internet, or other means, correct?

PS to summary: That is, of course, assuming that the item is a media (image, book, etc.) and isn't crime inciting or the illegal filth that is child porno.

Answer 1

The Miller test is a creation of the courts, not the legislative branch. Even though it is couched as a constitutional limit, theM iller test is not statutory, nor is it in the text of the constitution. Therefore, it is subject to being overturned either by subsequent court ruling or by a legislative act, assuming that a reviewing court finds that legislative act itself to be constitutional.

I know that's a bit convoluted, but so is the history of court review of obscenity statutes and prosecutions. Also, the community standards piece of the analysis offers yet another set of moving parts.

So, applying the above to your hypothetical, no, an item which is not today within Miller's ambit is not necessarily immune from penalties of the obscenity statute. Take, for example, an image or literary work that by today's standards is not Miller-infringing. Tomorrow it might be.

Whether the relevant statute of limitations on importation of that item would have run by the time of a hypothetical change in standards is, obviously, impossible to guess.

Cool question...

And, may all your surfing be safe...

Answer 2

No, the statute does not incorporate the elements of the Miller test.

But it would only be enforceable in interstate matters where the materials did violate the Miller Test (or the Undue Burden test for part c).

As far as prohibiting materials being brought into the country, it's arguable that Congress can regulate that to a greater degree than they can regulate domestic possession or transport. I'd have to check the cases that have addressed that.

Answer 3

LOL, I think you have a very small audiance that might answer you on this one..


on the one hand, I must say, I totally agree with you, but on the other hand, I would like to completely disagree with you... but unfortunitly I am one of the majority that has absolutly NO IDEA what you are talking about :) but its fun reading it :)

good luck, seem you have the answer already :)