Bi, Poly, Switch. I'm not indecisive, I'm greedy!
•Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
•Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
•Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
The Court reasoned that individuals could not be convicted of obscenity charges unless the materials depict “patently offensive hard core sexual conduct.” This means that many materials dealing with sex, including pornographic magazines, books, and movies, simply do not qualify as legally obscene.
Even more fundamentally, nudity does not equal obscenity. The Supreme Court recognized this in Jenkins v. Georgia, when it ruled that the film “Carnal Knowledge” was not obscene. Justice William Rehnquist wrote in that 1974 case that “nudity alone is not enough to make material legally obscene under the Miller standards....”
Pornography & obscenity | First Amendment Center
If that seems vague you are right. That is how the Supremes left it. The term "sexually explicit" is not used, but the history of successful prosections of "obscene" material shows that only convictions for explicit depictions of sexual or excretory functions are upheld. (It gets more complicated with alleged child porn but that is not relevant to this case)
Regarding tresspasing, the usual practice is to tell someone to leave when they are tresspassing on your property. The police can arrest the tresspasser if they still refuse to leave. It is unusual for someone to be charged with tresspassing when they comply with an order to leave, but that charge might be added when other crimes such as vandalism occurred. I don't know as much about tresspassing laws as I do first amendment law, but I have never heard of anyone being charged with tresspassing due to a photograph or video unless their was another crime involved.
The crime the kid in the OP was charged with is desecration, which literally means to make a sacred object non-sacred. The whole concept is based on superstition. The Pensylvania law defines it as doing something to an object that would offend an admirer of the object. (which is unconstitutionally vague IMO) Apparently no one witnessed the original act, or cared enough to make a complaint about tresspassing or desecration when the picture taken. Charges were filed when some law enforcement officer saw the picture and decided to be offended.
The desecration law is unconstitutional because is based on a person being offended by an act, not on the intent of the act itself or material harm from the act. There is no right to not be offended. (although an exception has wrongly been made for broadcast TV and radio] The creator of a form of expression can not control whether someone is offended, taking offense is a choice made by a person perceiving the work or act.
Since the object was not damaged and no one witnessed or cared about the possible tresspassing (the kids probably entered the property while it was open to the public since most churches allow anyone to visit their facilities) The charges are not based on the owner of the statue objecting to the use of the statue by the kid, so the ownership of the statue is not relevant to these descartion charges.
The only "crime" was offending the police with the photo. The cop was not there at the time the photo was taken, so the offense was all about the photo, not the original act. Since the photo does not even come close to being obscene, the prosecution is a first asmendment case that is extremely unlikely to be successful if the defendants make any effort to fight the charge. If it is appealed to a sufficiently high level, the desecration law will probably be ruled unconstitutional.
Last edited by Hard Truth; 09-27-14 at 02:32 PM.
The term "sexually explicit" is used in some state obscenity laws. This is the definition for the State of Washington:
(2) "Sexually explicit material" as that term is used in this section means any pictorial material displaying direct physical stimulation of unclothed genitals, masturbation, sodomy (i.e. bestiality or oral or anal intercourse), flagellation or torture in the context of a sexual relationship, or emphasizing the depiction of adult human genitals: PROVIDED HOWEVER, That works of art or of anthropological significance shall not be deemed to be within the foregoing definition.
Chapter 9.68 RCW: OBSCENITY AND PORNOGRAPHY
The Supreme courts decision in the flag burning case shows why the Pennsylvania desecration law is likely to be ruled unconstitional.
"The court first found that Johnson's burning of the flag was expressive conduct protected by the First Amendment. Therefore in order for a state to criminalize or regulate such conduct it would have to serve a compelling state interest that would outweigh the protection of the First Amendment. The court concluded that criminally sanctioning flag desecration in order to preserve the flag as a symbol of national unity was not a compelling enough interest to survive the constitutional challenge. .....The court said, "Recognizing that the right to differ is the centerpiece of our First Amendment freedoms . . . a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol. . . . "...."
Background summary & questions (
Everyone is born a homo sapiens sapiens but not everyone is a human. -RW
- There was never a good war, or a bad peace.
- Idealistically, everything should work as you planed it to. Realistically, it depends on how idealistic you are as to the measure of success.
- Better to be a pessimist before, and an optimist afterwords.