Text This: Words Alone Can Violate Federal Obscenity Laws

Howard J. Bashman
Special to Law.com
10-09-2006

Related: Bashman Archive

With so much attention focused on the Congressman Mark Foley sex scandal involving inappropriate text messages to congressional interns, it's worth noting that recent news reports and a federal appellate court decision confirm that federal obscenity prosecutions can be brought based on words alone, even when those words are unaccompanied by obscene visual images.

When most of us think of obscenity prosecutions, we assume that the matter concerns obscene photographs or films or videos. And, by and large, most obscenity prosecutions do involve visual images. But late last month The Pittsburgh Post-Gazette published an article headlined "Woman charged over 'vile' Web stories," which reported that "A Donora woman who federal prosecutors say posted fictional stories online about the rape, torture and murder of children was indicted this week on six charges of distributing obscene materials over the Internet. Unlike typical obscenity cases, though, [the defendant] is charged with violating the law through simple writing, and not with pictures or movies."

Moreover, within the past week, a unanimous three-judge panel of the 11th U.S. Circuit Court of Appeals affirmed a federal criminal conviction based on a jury's finding that various offensive voicemail messages consisted of words that constituted spoken obscenities. The 11th Circuit's opinion reproduces the offending language in exacting detail, proving that what is criminally obscene when spoken as a voicemail message may not be criminally obscene when expressed in the context of an appellate court's discussion of the sufficiency of the evidence.

But while technology has not yet progressed to the point where a person can be prosecuted merely for thinking bad thoughts, there are some exceptions to the general rule that the First Amendment automatically protects the expression of thoughts in language. One of the best-known exceptions is the "true threat" exception,
under which a person can be subject to criminal punishment for making a real threat to another's safety, notwithstanding the First Amendment.

As the recent appellate ruling and newspaper article discussed above demonstrate, obscene language can constitute another exception to the First Amendment right of expression. Under the U.S. Supreme Court's precedent in Miller v. California,
ml> setting forth the boundaries between obscene expression and First Amendment protections, the inquiry into whether a given expression is obscene involves determining "whether the work depicts or describes, in a patently offensive way, sexual conduct." From that quotation, it's clear that "depicts" includes visual communication, such as photographs, film and video, while "describes" includes textual expression.

Accordingly, if a particular visual depiction of certain conduct would qualify as obscene under applicable law, then presumably the textual description of the very same conduct would likewise qualify as obscene, even in the absence of visual images. My conclusion: Merely thinking obscene thoughts may not subject you to punishment, and prosecutions for using obscene language will presumably never occur as frequently as prosecutions for using obscene images, but the expression of obscene thoughts in words is still subject to criminal liability, notwithstanding the First Amendment.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.

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