Dissemination of Obscene Material in Florida

September 10, 2022 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

Obscenity is a term whose definition changes and fluctuates with the times. In decades past, the shirtless or sports-bra-wearing models posing in the front of grocery store fitness magazines could have been deemed obscene.

The litmus test for obscenity generally follows the culture that the materials are found in. A struggle has always existed between the desire to keep a community free from harmful or disturbing materials and the First Amendment protections offered by the United States Constitution regarding free speech.

In this blog, we will cover Florida’s Statute prohibiting obscene materials, the penalties a person could face, and what the State needs to prove to successfully prosecute someone under the law.

Florida’s Statute on Obscene Materials

Florida’s obscenity statute is codified in Chapter 847. Florida Statute Section 847.011 is titled “Prohibition of certain acts in connection with obscene, lewd, etc., materials,” and states that any involvement with obscene or lewd materials is illegal. Specifically, it criminalizes these actions in regard to obscene materials:

• Selling
• Lending
• Giving Away
• Distributing
• Transmitting
• Showing
• Offers to do any of the above
• Possessing with the intent to do any of the above

It also states the types of materials criminalized:

• Obscene books
• Obscene magazines
• Obscene periodicals
• Obscene pamphlets
• Obscene newspapers
• Obscene comic books
• Obscene story papers
• Obscene written or printed story or article
• Obscene writings
• Obscene papers
• Obscene cards
• Obscene drawings
• Obscene photographs
• Obscene motion picture films
• Obscene figures
• Obscene images
• Obscene wires, tapes, or other recordings
• Any article or instrument for obscene use

This statute has been used in past cases when communities try to ban nude art exhibitions that are seemingly offensive. Included in these types of offensive exhibitions are types of art or even pamphlets that have depicted homosexual activity, films, periodicals, books, and even theatrical live performances depicting live sex acts on stage.

This expansive statute further details that any involvement is penalized, like knowingly designing, copying, drawing, photographing, posing, writing, printing, publishing, or manufacturing obscene material. An individual can be an offender for even advertising, giving notice, or information on obscene materials.

Penalties

Anyone who does any of the above in regard to obscene materials can be charged with a first-degree misdemeanor, punishable by a fine of up to $1,000, up to one year in prison, probation, and/or a sex offender registration. For any subsequent violations, or if a minor is depicted, the offense is enhanced to a third-degree felony, punishable by a fine of up to $5,000, up to five years in prison, probation, and/or a sex offender registration.

What Does the State Need to Prove?

In order to convict an offender under the statute, the prosecutor must prove the following beyond a reasonable doubt:

1. The defendant had in their control, possession, or custody with the intent to sell, lend, give away, transmit, distribute, or advertise the obscene material, and
2. The material is obscene, meaning that the average person applying the standards of the local community where the defendant was charged would find that the material appeals to prurient interests, shows or illustrates offensive sexual conduct, or the material lacks any serious literary, artistic, political, or scientific value, and
3. The defendant knew of the content, character, and nature of the obscene materials.

Definitions

Obscenity

Obscenity’s legal definition refers to things that would be seen as repulsive, offensive, or disgusting to the local community.

Section 847.001(12) defines Obscene Materials as those that the average person under current community standards would find, as a whole, to appeal to the prurient interest, depict patently offensive sexual conduct, and taken as a whole lack any serious literary, artistic, political, or scientific value. 

Generally, any material showing or describing in graphic detail sexual contact performed on or between minors will be seen to be obscene. Some examples include:

• Child pornography
• Simulated sexual battery
• Simulated sexual battery on a minor
• Bestiality

Section 847.001(7) specifically states that a mother breastfeeding her child is not, under any circumstance, considered obscene or harmful to minors.

Prurient Interest

Materials appeal to a prurient interest when they depict or allude to a disgraceful or morose interest in sexual conduct, nudity, or excrement. Materials do not appeal to a prurient interest when the average person in the community could look upon the materials with a typical interest in sex openly.

No Defense for Lack of Knowledge of Age

The statute specifically states that an offender’s ignorance of a minor’s age, or even a minor misrepresenting their own age, cannot be used as a defense when being prosecuted under the statute. Furthermore, a minor’s consent is not a defense.

Tallahassee Criminal Defense Attorney

Sex crime charges carry harsh penalties in Florida that follow a defendant for a lifetime. When facing these allegations, you need to make sure that you have an experienced and dedicated criminal lawyer at your side. Our attorneys are experienced in representing clients for sex crimes in Florida and vow to fight for your freedom.

Contact Pumphrey Law at (850) 681-7777 to learn more about how we can help you combat these charges in court. Schedule your free consultation with a lawyer today.

Written by Gabi D’Esposito

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