PRODUCTION, SALE, DISTRIBUTION OF OBSCENE MATERIAL

The First Amendment gives everyone the right to freedom of speech, religion and the expression. There are, however, many forms of conduct, expression, and speech are considered obscene. The production, sale and distribution of obscene materials is a crime in Nevada.

What is the legal definition of Production, sale or distribution of obscene material?

“Obscenity” is defined in NRS 201.235, 201.237, 201.239, 201.241, 201.243, 201.245, 201.247, 201. 249, 201.251, 201.253, and 201.254.

“Production, sale or distribution of obscene material” is defined in 201.235, 201.237, 201.239, 201.241, 201.243, 201.245, 201.247, 201.249, and 201.254

NRS 201.235 – Definitions.

In NRS 201.235 to 201.254, inclusive, unless the context otherwise requires:

“Community” means the area from which a jury is or would be selected for the court in which the action is tried.
“Item” includes any book, leaflet, pamphlet, magazine, booklet, picture, drawing, photograph, film, negative, slide, motion picture, figure, object, article, novelty device, recording, transcription, phonograph record or tape recording, videotape or videodisc, with or without music, or other similar items.
“Material” means anything tangible which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or in any other manner.
“Obscene” means any item, material, or performance which:
1. An average person applying contemporary community standards would find, taken as a whole, appeals to prurient interest;
2. Taken as a whole lacks serious literary, artistic, political or scientific value; and
3. Does one of the following:
  1. Depicts or describes in a patently offensive way ultimate sexual acts, normal or perverted, actual or simulated.
  2. Depicts or describes in a patently offensive way masturbation, excretory functions, sadism or masochism.
  3. Lewdly exhibits the genitals.

Appeal shall be judged with reference to ordinary adults, unless it appears, from the character of the material or the circumstances of its dissemination, to be designed for children or a clearly defined deviant group.

“Performance” means any play, motion picture, dance or other exhibition performed before an audience.

NRS 201.237 – Exemptions.

The provisions of NRS 201.235 to 201.254, inclusive, do not apply to those universities, schools, museums, or libraries which are operated by or are under the direct control of the State, or any political subdivision of the State, or to persons while acting as employees of such organizations.

NRS 201. 239 – Power of county, city or town to regulate obscenity.

The provisions of NRS 201.235 to 201.254, inclusive, do not preclude any county, city or town from adopting an ordinance further regulating obscenity if its provisions do not conflict with these statutes.

NRS 201.241 – Action to declare item or material obscene and obtain injunction.

The district attorney or city attorney of any county or city, respectively, in which there is an item or material which the district attorney or city attorney believes to be obscene, may file a complaint in the district court seeking to have the item or material declared obscene and to enjoin the possessor and the owner from selling, renting, exhibiting, reproducing, manufacturing or distributing it and from possessing it for any purpose other than personal use.
In such an action, no temporary restraining order may be issued.
A trial on the merits must be held not earlier than 5 days after the answer is filed nor later than 35 days after the complaint is filed. The court shall render a decision within 2 days after the conclusion of the trial.

NRS 201.243 – Evidence probative of obscenity of material or item.

In prosecutions under NRS 201.235 to 201.254, inclusive, evidence of circumstances of production, dissemination, sale or publicity of the material or item, which indicates it is being commercially exploited by the defendant for its prurient appeal, is probative of the obscenity of the material or item and can justify the conclusion that it is, taken as a whole, without serious literary, artistic, political or scientific value.

NRS 201.245 – Surrender, seizure and destruction of obscene item or material; undertaking not required for injunction; defendant chargeable with knowledge of contents after service of summons and complaint.

If a final judgment declaring an item or material obscene is entered against its owner or possessor, the judgment shall contain a provision directing the owner or possessor to surrender to the sheriff of the county in which the action was brought the item or material declared obscene and a direction to the sheriff to seize and destroy it.
In any action brought to declare an item or material obscene, the district attorney or city attorney bringing the action is not required to file an undertaking before an injunction is issued.
A sheriff directed to seize an obscene item or material is not liable for damages sustained by reason of the injunction in cases where the judgment ultimately is rendered in favor of the person, firm, association or corporation sought to be enjoined.
Every person, firm, association or corporation who sells, distributes, or acquires possession with intent to sell or distribute any allegedly obscene item or material, after service upon the person, firm, association or corporation of a summons and complaint in an action brought to declare an item or material obscene is chargeable with knowledge of the contents of the item or material.

NRS 201.247 – Payment to city or county of value received from sale of obscene materials after judgement or injunction.

If a district court enters a judgment that an item or material is obscene and that item or material, or one substantially identical thereto, is sold after that judgment or injunction, the court shall order an accounting to determine the value of all money and other consideration received by the defendant which was derived from the obscene item or material after the court judged it to be obscene. The defendant shall pay a sum equivalent to that value into the general fund of the city or county which prosecuted the action.

NRS 201.249 – Production, sale, distribution, exhibition and possession of obscene items or materials; penalty.

Except as otherwise provided in NRS 201.237 and except under the circumstances described in NRS 200.720 or 200.725, a person is guilty of a misdemeanor who knowingly:

Prints, produces or reproduces any obscene item or material for sale or commercial distribution.
Publishes, sells, rents, transports in intrastate commerce, or commercially distributes or exhibits any obscene item or material, or offers to do any such things.
Has in his or her possession with intent to sell, rent, transport, or commercially distribute any obscene item or material.

NRS 201.254 – Exemption of stagehands and movie projectionists from criminal liability when possessing or exhibiting obscene material directly related to their work.

A motion picture machine operator or a stagehand is not criminally liable for exhibiting or possessing with the intent to exhibit any obscene material if:

Such exhibition or possession is a part of the motion picture he or she is projecting or part of the stage show for which he or she is employed as a stagehand; and
The operator or stagehand has no financial interest, except wages, and no managerial responsibility in his or her place of employment.

Why does it take so many statutes to define “production, sale and distribution of obscene material”?

Because it is important to first understand what makes something “obscene” which is not an easily defined concept. The United States Supreme Court has even had difficulty attaching a specific definition. In a decision relating to “hard-core” pornography, Supreme Court Justice Potter Stewart was quoted as saying that it was almost impossible to define, “but I know it when I see it.” This definition has been used to describe all “obscene” material, not just pornography, ever since.

Because it is such a vague concept, there are a lot of different aspects that have to be covered in order to fully understand how the law views “obscenity.”

The word “obscene” is specifically defined in NRS 201.235(4). The definition states that there are 3-elements to whether an item, material, or performance is “obscene”

An average person applying contemporary community standards would find, taken as a whole, that the material appeals to prurient interests;
The material, taken as a whole, lacks serious literary, artistic, political or scientific value; and
The Material:
1. Depicts or describes any sexual act, whether actual or simulated;
2. Depicts or describes, in a patently offensive way, masturbation, excretory functions, sadism or masochism.
3. Lewdly exhibits the genitals.

That proves my point, why all the other statutes to define something that is put so simply in the “definitions” section?

For two reasons: first, because the definition is not as simple as it seems, it is vague and uses a lot of uncommon words; and second, the definition of the word “obscene” is only part of the crime (there also has to be a discussion of how it is applied in various situations).

Can you clarify the vagueness in the definition?

Yes. Each of the three elements is vague in its own way.

Please Note: for each of the elements, it is important to understand that the element requires that the material or conduct be take, “as a whole,” which means that while some parts may, by themselves be obscene, if the work or material as a whole is not, then the work cannot be considered obscene.

The first element uses two phrases that are obviously vague: “contemporary community standards” and “prurient interests”.

“Contemporary Community Standards” – This is nothing more than a concise way of saying that “obscenity” is based, at least in part, on the morals and general ethical concerns of the local area where the crime is being tried. In other words, conduct that is seen as perfectly acceptable in Las Vegas, may be thought of as “obscene” in Elko, or Carson City, or Lake Tahoe. For the sake of prosecuting “obscene” crimes, the “community” that matters is where the crime is being charged, so it would be the same “community” from which a jury would be drawn.
“Prurient Interest” – “Prurient” is an uncommon word that most people outside the legal profession will never even hear, let alone understand the definition. Quite simply, it refers to an interest in sex that is morbid, degrading, and/or unhealthy. Clearly, this is a vague definition as everyone’s definition of an “unhealthy” interest in sex would likely be different. This is where the “standard of community” aspect becomes critical, as determining what is “prurient” is determined by what the general consensus of the community would be.

The second element is vague only because it has no definition of what “serious literary, artistic, political or scientific value” means. The easiest way to explain this is using examples:

The film industry is full of examples of movies that would likely be considered obscene, except for the fact that, as movies, they are a form of both literary and artistic forms of expression;
In the early 1990’s rap music was attacked as “obscene.” The individual groups being attacked were able to defend themselves because their music was, at its core, a form of artistic expression, and could not be considered “obscene”;
During the 1960’s, many women participated in a women’s rights political movement that was expressed in the burning of bras in public areas. Although many people, and communities, believed the expression to be obscene (particularly if the bra was first taken off in public), the conduct was not obscene as it was conduct that portrayed serious political value.
Generally, any scientist performing studies related to sex, gender, relationships, or intercourse will be considered performing work of scientific value, despite the fact that their conduct, and the conduct of those participating in the research would otherwise be considered “obscene.”

The third element is the most specifically stated of the 3 elements. It essentially means that if conduct or material meets the first two elements, it can only be considered “obscene” if the subject of the conduct or material depicts or describes:

Any sort of sexual act, whether actual or simulated, including masturbation;
Excretory functions;
Sadism or masochism; or
Lewdly exhibits the genitals.

Please Note: The statute states that these subject matters must be depicted or described in a manner that is “patently offensive.” As a general rule, if the matter is depicted or described in a way that holds artistic value, then it is not “patently offensive.” Consequently, if the conduct or material overcomes the second element, then it will clearly overcome the “patently offensive” language as well.

Conduct that meets all three of these elements is deemed “obscene” for the sake of all of the other obscenity laws.

How does the court determine whether something is “Obscene”?

The district attorney, or city attorney depending on who is commencing the action, must file a complaint in the district court seeking to have the conduct or material declared obscene by the court. The motion will likely seek to enjoin, or stop, the possessor and owner from selling, renting, exhibiting, or in any other way distributing the conduct, item or material.

Once such a complaint is filed, the defendant (the possessor, creator, owner, actor, etc., of the conduct) has 30 days to file an Answer to the Complaint. The court must hold a hearing on the merits of the Complaint no later than 5 days after the Answer is filed.

During the trial, the district or city attorney has the ability to use any available evidence showing that the item, material or conduct was being exploited for its “prurient appeal” as a means of proving obscenity. Such evidence is relevant to the intent of the item, material or conduct can be used as the basis for a determination that no serious literary, artistic, political or social value exists.

After the hearing, the court must issue its decision within 2 days. If the court determines that the item, material or conduct is obscene, then the decision must contain a provision requiring that the item or material be surrendered to the county sheriff, or alternatively, that the sheriff seize and destroy the item or material.

Please Note: The district attorney or city attorney cannot be issued an injunction prohibiting the distribution of the item or material during the pendency of the trial.

Please Also Note: Any person or group of people who distribute, or intend to distribute, the item or material, is assumed to have knowledge of the contents of the item or material. If the contents are deemed obscene, everyone with knowledge can be charged with any crimes stemming therefrom.

Okay, so how does all of that apply to the “Production, sale and distribution? Isn’t that all determined after the fact?

It is true that the determination of whether material is “obscene” isn’t generally done until after the material has been produced. However, note that the statute says “knowingly” produces, sells or distributes obscene material. In other words, NRS 201.249 applies to any production, sale or distribution after a material has been deemed “obscene.”

In other words, after an item or material has been deemed “obscene,” there are numerous ways to violate NRS 201.249:

Printing the obscene material;
Producing the obscene material;
Reproducing the obscene material;
Publishing the obscene material;
Selling the obscene material;
Renting out the obscene material;
Transporting the obscene material in intrastate commerce;
Commercially distributing the obscene material;
Have the obscene material in your possession with the intent to sell, rent transport or commercially distribute the obscene material.

Please Note: NRS 201.249 criminalizes the possession of obscene materials with the intent to distribute them. It does not criminalize the mere possession of such items or materials. However, depending on what the materials are, possession may violate other laws (for example, child pornography laws).

What are the possible penalties?

Production, sale, and distribution of obscene materials is a misdemeanor in Nevada, which carries with it:

Up to 6 months in a county jail; and/or
Possible fines up to $1,000.

However, that is not the only penalty that obscenity crimes can carry. The defendant can be fined in an amount equal to all money or other items of value that were received in exchange for the material. In other words, if the material is deemed “obscene”, and then distributed after that determination is made, then the defendant can be charged with a misdemeanor, face jail time, up to a $1,000 fine, and be fined whatever profits they received from the distribution of the item or material.

Please Note: Once an item or material has been deemed “obscene” each individual subsequent sale, or other distribution, can be charged as a separate violation.

Are there any Defenses?

Yes, of course there are. The vagueness in “obscenity” crimes lends to strong defenses. Some of the possible defenses include:

Action was not “knowing” – Obscenity laws require knowledge that the material is considered obscene. If you can show that you had no knowledge, and no reason to have knowledge, that the material had been deemed “obscene,” then the charges against you should be dropped or dismissed.
Not obscene – Generally speaking, if you are being charged with a crime after material has been deemed “obscene,” this defense will not apply. However, as noted above, “obscenity” is a subjective matter, and can vary from one community to the next. If you can show that the material is not deemed “obscene” in the community where you are being charged, then the prosecutor will be forced to first prove, beyond a reasonable doubt, that the material is obscene in that community before you can be charged with the obscenity crimes.
Protected Conduct or Material – Obscenity crimes are often protected in one of two ways: there are many “obscene” items or materials that are protected under the First Amendment’s freedom of speech and expression clauses; also, many other shows, items, or materials are protected as having serious literary, artistic, political or scientific value. Consequently, if your actions are protected by either of these avenues, then the charges against you should be dropped or dismissed.

What should I do if I’ve been charged with Production, sale or distribution of obscene material?

As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.