Obscenity Legal Definition

The current definition of obscenity in the statute tracks the Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), definition of obscenity. The current statute goes into somewhat greater descriptive detail in defining patently offensive representations than did the Miller court. Compare TEX. PENAL CODE 43.21(a)(1)(B), with Miller, 413 U.S. at 24-27. Compare TEX. PENAL CODE 43.21(a)(1), with Miller, 413 U.S. at 24-27. Accordingly, this Court may look to Federal obscenity materials for guidance. See, e.g., Berg v. State, 599 S.W.2d 802 (Tex. Crim. App. Panel Op. 1980) (relying on, and analyzing extensively, United States Supreme Court obscenity cases). The United States Supreme Court dealt with these same issues in Hamling v. United States, 418 U.S. 87, 119-24, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974). In Hamling, the court's charge permitted the jury to find the defendant guilty if the defendant "knew the envelopes and packages containing the subject materials were mailed or placed . . . in Interstate Commerce, and that the defendant had knowledge of the character of the materials." Id. at 119-20. The defendant argued that the charge was improper because in order for a conviction under 18 U.S.C. 1461 (mailing obscene materials) to be constitutionally sound, the government had to prove that the defendant had "awareness of the obscene character of the material." Id. at 120. The Court rejected the defendant's argument. The Court found Smith v. California to be distinguishable because that case involved a statute that completely dispensed with a scienter requirement. Id. at 121. the Court held that knowledge of character and content was all that was required under the statute and the Constitution. 418 U.S. at 123-24. The Court explained that, to "require proof of a defendant's knowledge of the legal status of the materials as obscene would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law. Such a formation is required neither by 18 U.S.C. 1461 nor by the Constitution." Id.; see also Ginsberg v. New York, 390 U.S. 629, 644-45, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968) (finding constitutional a New York obscenity statute that defined the term knowingly as knowledge or reason to know "the character and content of the material"); Rosen v. United States, 161 U.S. 29, 41-42, 40 L. Ed. 606, 16 S. Ct. 434 (1896) (holding that the forerunner to 18 U.S.C. 1461 did not require the defendant to know that the material could be classified as obscene, rather only knowledge of the character and content was required).