Legal Memorandum: Defenses to Obscenity Charges in LA

Issue: What potential defenses to obscenity charges are available under Louisiana and federal law and the U.S. and Louisiana Constitutions?

Area of Law: Constitutional Law
Keywords: Obscenity charges; Obscene materials
Jurisdiction: Federal, Louisiana
Cited Cases: 555 So.2d 1365; 772 So.2d 64; 609 So. 2d 320; 418 U.S. 153; 413 U.S. 15; 360 So.2d 831; 552 So. 2d 1372; 564 So. 2d 345; 343 So. 2d 698; 724 F.2d 436; 483 So. 2d 1264
Cited Statutes: LSA-R.S. 14:106; LSA-R.S. 14:106A(3)
Date: 11/01/2008

The defenses commonly asserted against charges involving the sale and/or distribution of obscene materials include vagueness and overbreadth, right to privacy and due process challenges. 

The pertinent Louisiana statutory language states:

            A, the crime of obscenity is the intentional:

            . . . .

            (3)(a)  Sale, allocation, consignment, distribution, dissemination, advertisement, exhibition, electronic communication, or display of obscene material . . .


            (b)  Obscene material is any tangible work or thing which the trier of fact determines that the average person applying contemporary community standards would find, taken as a whole, appeals to prurient interest, and which depicts or describes in a patently offensive way, hard core sexual conduct specifically defines in Paragraph (2) of this subsection, and the work or thing taken as a whole lacks serious literary, artistic, political, or scientific value.


LSA-R.S. 14:106

The First Amendment’s protection of expression is not absolute.  “Obscenity” falls outside its shield.

The First Amendment protects all ideas having the slightest redeeming social importance, even those ideas which may be considered by some as unorthodox, controversial, or even hateful to the prevailing climate of opinion.  However, the First and Fourteenth Amendments are not absolute and have never been treated as such by the courts.  Certain ideas may be excluded from their protection if those ideas encroach upon limited areas of more important interests.  The United States Supreme Court has categorically rejected the argument […]


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