Obscenity

Obscenity

Obscenity in legal terminology often applies to subject matter deemed to be morally offensive. Obscenity offenses in Texas are illegal under both state and federal law.

Texas state law makes it a crime to promote or produce, present, or direct obscene material. Federal law outlaws a number of different kinds of obscene material and activities.


Dallas Obscenity Lawyer

Were you or your loved one arrested for an alleged obscenity offense in the greater Dallas area? Do not wait to retain legal counsel.

Contact the Law Offices of Richard C. McConathy as soon as possible. Call (940) 222-8004 or contact us online to set up a free consultation.

Texas Obscenity Penalties

Under Texas Penal Code § 43.23(a), a person commits an obscenity offense if, knowing its content and character, they wholesale promote or possess with intent to wholesale promote any obscene material or obscene device. This crime is a state jail felony punishable by up to two years in state jail and/or a fine of up to $10,000.

Texas Penal Code § 43.23(c) establishes that a person also commits an obscenity offense if, knowing its content and character, they:

promote or possess with intent to promote any obscene material or obscene device;  or
produce, present, or direct an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity.

This crime is a Class A misdemeanor punishable by up to one year in jail and/or a fine of up to $4,000. Under Texas Penal Code § 43.23(e), a person who promotes or wholesale promotes obscene material or an obscene device or possesses the same with intent to promote or wholesale promote it in the course of his business is presumed to do so with knowledge of its content and character.

Texas Penal Code § 43.23(f) establishes that a person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same. Under Texas Penal Code § 43.23(h), the punishment for an offense under Texas Penal Code § 43.23(a) or Texas Penal Code § 43.23(c) is increased to the punishment for a second-degree felony punishable by up to 20 years in prison and/or a fine of up to $10,000 if it is shown on the trial of the offense that obscene material that is the subject of the offense visually depicts activities described by Texas Penal Code § 43.21(a)(1)(B) (depicts or describes patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality or 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 taken as a whole, lacks serious literary, artistic, political, and scientific value) engaged in by:

a child younger than 18 years of age at the time the image of the child was made;
an image that to a reasonable person would be virtually indistinguishable from the image of a child younger than 18 years of age; or
an image created, adapted, or modified to be the image of an identifiable child.

Under Texas Penal Code § 43.23(i), “identifiable child” is defined as a person, recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature:

who was younger than 18 years of age at the time the visual depiction was created, adapted, or modified;  or
whose image as a person younger than 18 years of age was used in creating, adapting, or modifying the visual depiction.

An increase in punishment does not require proof of the actual identity of an identifiable child.

Federal Obscenity Penalties

Federal obscenity crimes include all of the following:

Possession with intent to sell, and sale, of obscene matter on federal property, 18 U.S. Code § 1460 — An alleged offender who either in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the government of the United States, or in the Indian country as defined in 18 U.S. Code § 1151, knowingly sells or possesses with intent to sell an obscene visual depiction will be punished by a fine and/or imprisoned for up to two years.

Mailing obscene or crime-inciting matter, 18 U.S. Code § 1461 — Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. An alleged offender who knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or 39 U.S. Code § 3001(e) to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined and/or imprisoned up to five years for a first offense. Each subsequent offense is punishable by a fine and/or up to 10 years in prison.

Importation or transportation of obscene matters, 18 U.S. Code § 1462 — An alleged offender who brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or interactive computer service , for carriage in interstate or foreign commerce any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound; or any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or knowingly takes or receives, from such express company or other common carrier or interactive computer service any matter or thing the carriage or importation of which is herein made unlawful will be fined and/or imprisoned up to five years for the first offense and will be fined and/or imprisoned up to 10 years for each such offense thereafter.

Mailing indecent matter on wrappers or envelopes, 18 U.S. Code § 1463 — All matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which, and all postal cards upon which, any delineations, epithets, terms, or language of an indecent, lewd, lascivious, or obscene character are written or printed or otherwise impressed or apparent, are nonmailable matter, and shall not be conveyed in the mails nor delivered from any post office nor by any letter carrier, and shall be withdrawn from the mails under such regulations as the Postal Service shall prescribe. An alleged offender who knowingly deposits for mailing or delivery, anything declared by this section to be nonmailable matter, or knowingly takes the same from the mails for the purpose of circulating or disposing of or aiding in the circulation or disposition of the same, will be fined and/or imprisoned up to five years.

Broadcasting obscene language, 18 U.S. Code § 1464 — An alleged offender who utters any obscene, indecent, or profane language by means of radio communication will be fined and/or imprisoned up to two years.

Production and transportation of obscene matters for sale or distribution, 18 U.S. Code § 1465 — An alleged offender who knowingly produces with the intent to transport, distribute, or transmit in interstate or foreign commerce, or knowingly transports or travels in, or uses a facility or means of, interstate or foreign commerce or an interactive computer service in or affecting such commerce, for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, will be fined and/or imprisoned up to five years. The transportation as aforesaid of two or more copies of any publication or two or more of any article of the character described above, or a combined total of five such publications and articles, will create a presumption that such publications or articles are intended for sale or distribution, but such presumption shall be rebuttable.

Engaging in the business of selling or transferring obscene matter, 18 U.S. Code § 1466 — An alleged offender engaged in the business of producing with intent to distribute or sell, or selling or transferring obscene matter, who knowingly receives or possesses with intent to distribute any obscene book, magazine, picture, paper, film, videotape, or phonograph or other audio recording, which has been shipped or transported in interstate or foreign commerce, will be punished by imprisonment for up to five years and/or a fine.

Obscene visual representations of the sexual abuse of children, 18 U.S. Code § 1466A — Any person who, in any communication involved in or made in furtherance of the offense is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the offense; any communication involved in or made in furtherance of the offense contemplates the transmission or transportation of a visual depiction by the mail, or in interstate or foreign commerce by any means, including by computer; any person travels or is transported in interstate or foreign commerce in the course of the commission or in furtherance of the commission of the offense; any visual depiction involved in the offense has been mailed, or has been shipped or transported in interstate or foreign commerce by any means, including by computer, or was produced using materials that have been mailed, or that have been shipped or transported in interstate or foreign commerce by any means, including by computer; or an offense is committed in the special maritime and territorial jurisdiction of the United States or in any territory or possession of the United States, knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that depicts a minor engaging in sexually explicit conduct; and is obscene; or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so, shall be subject to the penalties provided in U.S. Code § 2252A(b)(1), including the penalties provided for cases involving a prior conviction. Any person who, in the aforementioned circumstances, knowingly possesses a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that depicts a minor engaging in sexually explicit conduct; and is obscene; or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so, shall be subject to the penalties provided in U.S. Code § 2252A(b)(2), including the penalties provided for cases involving a prior conviction.

Distributing obscene material by cable or subscription television, 18 U.S. Code § 1468 — An alleged offender who knowingly utters any obscene language or distributes any obscene matter by means of cable television or subscription services on television, will be punished by imprisonment for up to two years and/or a fine.

Transfer of obscene material to minors, 18 U.S. Code § 1470 — An alleged offender who, using the mail or any facility or means of interstate or foreign commerce, knowingly transfers obscene matter to another individual who has not attained the age of 16 years, knowing that such other individual has not attained the age of 16 years, or attempts to do so, will be fined and/or imprisoned for up to 10 years.

Obscenity Defenses in Texas

Under Texas Penal Code § 43.23(g), it is an affirmative defense that the person who possesses or promotes material or a device proscribed by this section does so for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.

Dallas County Obscenity Resources

Texas Western Court Order Obscenity Law — Reliable Consultants, Inc., which operated retail stores in Texas that carried a stock of sexual devices, and PHE, Inc., which was also engaged in the retail distribution of sexual devices through website and catalogs, both filed lawsuits against the so-called Texas Obscene Device Law, originally passed in 1973 and amended in 2003. The lawsuits claimed that the statute was unconstitutional, and a three-judge panel of the 5th Circuit Court of Appeals overturned the statute on February 12, 2008, by a vote of 2–1, holding that “the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution.” On July 3, 2008, the Texas 13th District Court of Appeals in Corpus Christi ruled that until the Texas Court of Criminal Appeals ruled that the statute was unconstitutional, the promotion of obscene devices remained illegal. On November 13, 2008, U.S. District Judge Lee Yeakel filed a “joint status report” that noted the parties had come to an agreement. “Texas Penal Code §§ 43.23, to the extent that it applies to “obscene devices” as defined in Texas Penal Code § 43.21(a)(7), is declared to be facially unconstitutional and unenforceable throughout the State of Texas.”

Changing Standards of Obscenity in Texas | SMU Scholar — View the full text of this 1980 article from the SMU Law Review. The article discusses the definitional problem with obscenity offenses. It also discusses changing definitions of obscenity in Texas.

Law Offices of Richard C. McConathy | Dallas Obscenity Attorney

If you or your loved were arrested for an alleged obscenity offense in Dallas or another community in Texas, you will want to be sure that you seek legal representation as soon as possible. Make sure you contact the Law Offices of Richard C. McConathy.

Our firm can fight to possibly get your criminal charges reduced or dismissed. You can have us review your case when you call 972-233-5700 or contact us online to take advantage of a free consultation.


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