For Those Charged With a Crime
Transmitting Obscenity and the Miller Test
Defending Your Rights In Texas
One person’s obscenity is another person’s free speech. To make sense of how the law defines obscenity, we have to take a look at the legal concept of obscenity from a state and federal standpoint.
However, one thing is clear: If you face a charge of transmitting obscene material in Texas, you should work with a Texas licensed criminal defense attorney who will work hard to find the right defense for your unique case.
How Texas Defines Obscenity
Texas Penal Code Section 43.23 defines two different types of obscenity. The first type of obscenity involves someone possessing “obscene material” or “obscene device,” with the intent to wholesale promote the obscene material or the obscene device. The second type of obscenity in Texas does not require the “wholesale” promotion of obscene material or obscene device. Because the definition of obscenity in Texas can confuse defendants, it is important to consult with an experienced criminal defense attorney who specializes in handling transmitting obscenity cases.
Here is how Texas Penal Code Section 43.21 defines obscenity.
“(1) “Obscene” means material or a performance that:
(A) The average person, applying contemporary community standards, would find that taken as a whole, appeal to the prurient interest in sex;
(B) Depicts or describes:
(i) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and
(C) Taken as a whole, lacks serious literary, artistic, political, and scientific value.”
What is the Miller Test?
In the 1973 case called Miller v. California, the United States Supreme court established the litmus test for defining obscenity. The majority opinion, which was presented by Chief Justice Warren Burger, presented a set of guidelines for defining obscenity.
“(1) whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest;
(2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value”
The 1973 decision created a national definition for obscenity that the Supreme Court wanted the 50 states to follow. However, after several lawsuits filed by the ACLU, each of the 50 states was granted more legal leeway to establish definitions of obscenity and hence, Texas eventually set a list of guidelines for the judicial system to follow for defining obscenity.
Defenses for Transmitting Obscenity
How to beat transmitting obscenity charges depends mostly on the unique circumstances of your case. However, there are four primary ways highly rated criminal defense lawyer Adam Capetillo defends transmitting obscenity cases.
Material Not Obscene
This defense is one that requires the legal expertise of an accomplished criminal defense attorney who will successfully argue the material you possessed does not fulfill the legal definition for obscenity in the State of Texas. The key to proving the material does not meet the Texas obscene criteria is to educate the jury about what constitutes obscene material in The Lone Star State. Criminal defense attorney Adam Capetillo is highly skilled at educating the jury about the definition of obscenity in Texas.
Obtaining a guilty verdict for the charge of transmitting obscenity requires the prosecution to prove your guilt “Beyond a reasonable doubt.” Adam Capetillo has several ways to plant the seed of reasonable doubt, starting by establishing the material in question was used for a legitimate, scientific, religious, or educational purpose.
Proving charges of transmitting obscenity requires the prosecution team to present evidence of the alleged obscene material. This means law enforcement had to acquire the alleged obscene material by searching your property and seizing the material alleged to be obscene. Sometimes, law enforcement personnel fail to abide by the Constitutional restrictions placed on search and seizure missions. If a law enforcement agency did not obtain the right warrant to search your property, we can claim the agency violated the 4th Amendment to the United States Constitution.
Finally, some transmitting obscenity cases unfold years after the alleged act took place. We will determine whether your case is still legally valid by referring to the Texas statute of limitations for prosecuting transmitting obscenity cases.
Texas Criminal Defense Attorney
If you face the criminal charge of transmitting obscenity, you should reach out to a Texas licensed criminal defense attorney for two reasons: To receive the best possible legal representation and to learn more about how Texas defines obscene materials.