Written by attorneys · grounded in primary & secondary sources — see below
A quality of speech or material that affronts contemporary community standards relating to the description or representation of sexual matters by going substantially beyond customary levels of tolerance. The quality is assessed by reference to the average person applying those standards and forms one element of the test for obscenity.
Sources & Authorities
How it applies
Common Examples
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Midday Broadcast Monologue
Crest Publishing aired a full uncensored monologue containing graphic sexual descriptions and crude excretory jokes during a midday culture segment when many children were home. The Federal Communications Commission imposed civil sanctions on the network for the content. The sanctions stand because the broadcast medium's unique pervasiveness and accessibility to children permit regulation of patently offensive sexual and excretory speech even when the material is not obscene.
Internet Age-Verification Mandate
Ash Learning offered adult courses on erotic literature through its federally funded platform. The Patent and Trademark Office required strict per-login age verification to unblock patently offensive materials or else imposed filters that blocked adult access. The requirement violates the First Amendment because the absence of effective gateway technologies effectively burdens adults' access to protected speech.
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Cases
Casebooks
Course Outlines
Study Supplements
Obscenity Prosecution of Magazine
A distributor mailed a brochure depicting ultimate sexual acts and lewd exhibitions of genitals. Prosecutors charged the distributor under a state obscenity statute. The material meets the patently offensive element because it depicts sexual conduct specifically defined by state law in a manner that affronts contemporary community standards.
Miller v. California413 U.S. 15, 30-34 (1973)
Child Pornography Possession Charge
Osborne possessed photographs showing minors engaged in explicit sexual conduct. The state prosecuted him under a statute targeting such images. The images qualify as unprotected even without satisfying every element of the obscenity test because the patently offensive quality is not required when actual minors are depicted.
Osborne v. Ohio495 U.S. 103 (1990)
Offensive Magazine Parody
Hustler Magazine published an ad parody depicting a public figure in a crude sexual scenario. The figure sued for intentional infliction of emotional distress. The claim fails because the parody, though patently offensive, receives First Amendment protection absent a false statement of fact made with actual malice.
Hustler Magazine v. Falwell485 U.S. 46 (1988)
Promissory Estoppel Claim
A newspaper published truthful information after promising confidentiality to a source. The source sued under promissory estoppel for resulting harm. The claim proceeds because enforcement of the promise does not punish protected expression.
Common questions
Frequently Asked
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How does patently offensive differ from the prurient interest element in the Miller test?+
The patently offensive element requires that the work depict or describe sexual conduct in a manner that affronts contemporary community standards by going substantially beyond customary tolerance. The prurient interest element separately asks whether the average person would find that the work as a whole appeals to a shameful or morbid interest in sex.
Can broadcast material be sanctioned for being patently offensive even if it is not obscene?+
Yes. Broadcasting's unique ability to intrude into the home and reach children permits civil sanctions for patently offensive sexual and excretory speech at times when children are likely in the audience, even when the material does not meet the full obscenity test.
Why was a federal statute regulating patently offensive internet messages to minors held unconstitutional?+
The statute effectively imposed a total ban on protected adult speech because no effective age-screening gateway technologies existed at the time. The burden on adults' First Amendment rights therefore outweighed the government's interest in protecting minors.
Does patently offensive material lose First Amendment protection in a parody or opinion context?+
No. Even patently offensive expression of opinion receives protection unless it contains a false statement of fact made with actual malice. A public figure cannot recover for emotional distress caused by such speech without that additional showing.
505 U.S. 377 (1992)First Amendment Law
…the basis of distinction within the class. To illustrate: A State might choose to prohibit only that obscenity which is the most patently offensive in its prurience — i. e. , that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive…