/* The Model Penal Code (MPC) is arguably the most important work
on criminal law in the past 30 years. This Model Code has been
used as the basis of many state's criminal codes. New Jersey and
Pennsylvania have adopted the MPC as their criminal code.
However, sections of the MPC or slight re-writes are used by
virtually every state. The MPC's prohibition on "obscenity" and
distribution of obscenity follows. */
Section 251.4. Obscenity.
(1) Obscene Defined. Material is obscene if, considered as a
whole, its predominant appeal is to prurient interest, that is, a
shameful or morbid interest, in nudity, sex or excretion, and if
in addition it goes substantially beyond customary limits of
candor in describing or representing such matters. Predominant
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
other specially susceptible audience. Undeveloped photographs,
molds, printing plates, and the like, shall be deemed obscene
notwithstanding that processing or other acts may be required to
make the obscenity patent or to disseminate it.
(2) Offenses. Subject to the affirmative defenses provided in
Subsection (3), a person commits a misdemeanor if he knowingly or
recklessly:
(a) sells, delivers or provides, or offers or agrees to sell,
deliver or provide, any obscene writing, picture, records or
other representation or embodiment of the obscene; or
(b) presents or directs an obscene play, dance or performance, or
participates in that portion thereof which makes its obscene; or
(c) publishes, exhibits or otherwise makes available any obscene
material; or
(d) possesses any obscene material for purposes of sale or other
commercial dissemination; or
(e) sells, advertises or otherwise commercially disseminates
material, whether or not obscene, by representing or suggesting
that it is obscene.
A person who disseminates or possesses obscene material in the
course of his business is presumed to do so knowingly or
recklessly.
(3) Justifiable and Non-Commercial Private Dissemination. It is
an affirmative defense to prosecution under this Section that
dissemination was restricted to:
(a) institutions or persons having scientific, educational,
governmental or other similar justification for possessing
obscene material; or
(b) non-commercial dissemination to personal associates of the
actor.
/* Okay, so something is "obscene." It is nevertheless
permissible to distribute it to "personal associates" if there is
no commercial element to the distribution. Accordingly, in MPC or
MPC based states, a not for profit BBS could distribute even items
that are ""obscene"" among ""personal associates." This is the
"live and let live: exception to the law. The document generator
contains a form for persons to apply for access to an adult area.
The form requires that the users do not commercially exploit the
pictures they receive. */
(4) Evidence; Adjudication of Obscenity. In any prosecution under
this Section evidence shall be admissible to show:
(a) the character of the audience for which the material was
designed or to which it was directed;
(b) what the predominant appeal of the material would be for
ordinary adults or any special audience to which it was directed,
and what effect, if any, it would probably have on conduct of
such people;
(c) artistic, literary, scientific, educational or other merits
of the material;
(d) the degree of public acceptance of the material in the United
States;
(e) appeal to the prurient interest, or absence thereof, in
advertising or other promotion of the material; and
(f) the good repute of the author, creator, publisher or other
person from whom the material originated.
Expert testimony and testimony of the author, creator, publisher
or other person from whom the material originated, relating to
factors entering into the determination of the issue of
obscenity, shall be admissible. The Court shall dismiss a
prosecution for obscenity if it is satisfied that the material is
not obscene.
Downloaded From P-80 International Information Systems 304-744-2253
