Have you been charged with an Obscene Material offense?

Michigan law attempts to make certain types of material illegal because it is considered obscene. Obscene is undefined, so a savvy lawyer might be able to build a defense.

What is obscene material?

There is no explicit, clear definition of “obscene,” and an experienced, savvy defense lawyer can strongly argue that law enforcement’s view is overbroad and unreasonable. Obscene material charges can result in jail, probation, and various collateral consequences, such as loss of reputation, inability to obtain meaningful employment, loss of a professional license, and more.

“Obscene material” is defined as anything that an average individual would find capable of being used or adapted to be used to appeal to a prurient interest, which lacks any serious literary, artistic, political, or scientific value, and which depicts or describes sexual conduct in an openly offensive way. “Prurient” means a shameful or morbid (unhealthy) interest in nudity, sex, or excretion. “Sexual conduct” means representations or descriptions of all known sexual acts, normal or perverted, actual or simulated. Frequently, a strong defense can be mounted against obscene material charges. In many cases, a defense will rest upon the First Amendment.

What does the law prohibit?

A person may not disseminate (manufacture, sell, lend, rent, publish, exhibit, or lease to the public) obscene material for commercial gain and may not offer to do so. An essential aspect of the law is that anyone charged with dissemination must know the material’s content. In other words, a person cannot be convicted of disseminating obscene material unless they were aware of what the material depicts. The determination of whether the material is obscene is left to a judge or jury.

Because the judge and jury decide whether the material is obscene, a defense lawyer must have the experience, credibility, and reputation to make a compelling argument in favor of the defendant. The lawyer has to persuade a jury to accept that although something may be highly offensive and in poor taste, that doesn’t mean it rises to the level of illegally obscene. If materials are offensive or in poor taste, as opposed to obscene, a defense lawyer can fight for a dismissal of all charges.

Knowing that a “person” can be an actual person, a private company, a corporation, an association, or any other legal entity is important. It can also be an agent for any of these entities. A person may also not possess materials intending to disseminate them if they know the materials are obscene.

Penalties for Obscenity

A first offense for obscenity is a misdemeanor carrying a 1-year potential jail sentence, two (2) years of probation, and a $100,000.00 fine. A second or subsequent conviction on obscene material charges carries a 2-year jail term, five (5) years of probation, and a $50,000.00 to $5,000,000.00 fine.

The fines for obscenity are exorbitantly high and are virtually unmatched in the penal code. It is not that the government believes obscenity is much more severe than murder, for instance. Still, the law understands that obscene material is typically produced so that it can be sold. As noted above, one of the elements the prosecutor needs to prove is that the defendant produced the material for “commercial gain.” The law seeks to deprive potential distributors of the motive to produce obscenity in the first place. A producer of obscenity who makes a profit of hundreds of thousands or millions of dollars on obscene material might be willing to serve a relatively short jail term in exchange for the money. The law was intended to create a fine so high that it makes the crime too risky to break.

A supplier of books, papers, magazines, or other publications may not require the purchaser to take obscene material in addition to what the initial product order included. A franchiser may also not deny or revoke a franchise because the franchisee refused to accept obscene material for resale. Requiring someone to take obscene material is a 1-year, $500.00 misdemeanor.

So how can the pornography industry exist if such a law is on the books?

There is a fine line between pornography and obscenity. The First Amendment protects pornography. Obscenity has no constitutional protection and can be regulated or outlawed. For example, child pornography is illegal, and no constitutional protection exists for such materials. There are exemptions in the Michigan statute that allow certain people and entities to disseminate obscene materials. The exemptions do not apply to charges against private individuals acting of their own free will or unregulated businesses.

Defenses to Obscenity Material Charges

As seen above, the obscenity law is complicated and based on interwoven terms and definitions. Obscene material charges are, therefore, wide open to an attack by a creative and fearless defense attorney. Some of the defenses would be:

The defendant did not know the nature and character of the material;
The defendant did not make money off of the dissemination;
The defendant fits within one of the exemptions;
The material alleged to be obscene is not obscene;
The prosecutor cannot define the “current community standards” to any degree of certainty.

Prosecution for obscenity violates the 1st Amendment right to free speech.

An astute, experienced defense attorney can attack an obscenity charge from several angles. The language of the law itself shows that even lawmakers had a difficult time defining “obscene material.” A top-caliber defense attorney would point this out and be able to demonstrate that an offensive or insensitive picture, video, or image may be in poor taste but not illegal.

Supreme Court Justice Potter Stewart famously once said he was fairly sure he could not define pornography/obscenity, but that “I know it when I see it.” If a brilliant Supreme Court justice could not define it, what makes local prosecutors think they can? These kinds of laws are not like common criminal laws, such as, for example, arson; did the defendant burn something, or didn’t he? What is obscene is open to interpretation. The subjectivity of obscenity gives a savvy, insightful, and zealous defense attorney ample grounds for creative defense arguments.

Why hire the Defense Team at LEWIS & DICKSTEIN, P.L.L.C. if you have been charged with or are being investigated for violating obscene material laws? The attorneys with LEWIS & DICKSTEIN, P.L.L.C. are non-judgmental and have only one goal when hired to represent clients: do everything conceivably possible to help and protect the client. State and federal prosecutors widely know us for consistently presenting formidable challenges to our client’s charges. Obscenity charges are not black and white, open and shut cases, and a tenacious lawyer can explore many potential defenses.

The defense attorneys with LEWIS & DICKSTEIN, P.L.L.C. have decades of experience successfully defending clients in state and federal courts. We understand that protecting your rights is our top priority, and we are not afraid to do whatever is necessary to win. No lawyer can guarantee or promise any particular result; however, we can promise you that we will do everything possible to protect and defend you.

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.