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If I understand correctly, a U.S. state could in principle criminalize or otherwise prevent publication of a text-only book meeting the three-pronged test for obscenity handed down in Miller v. California. Before that case, there were several important obscenity trials involving literary works, including Ulysses and The Naked Lunch. Since then, it has seemed as if the Miller test has been treated as having a tacit corollary that text-only works are never obscene. But is that impression wrong? Have any successful enforcement actions been brought against text-only content? (Recently, an attempt was made to restrict sales of two books in Virginia, but that was dismissed.)

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An almost-successful case is the recent case Pennsylvania v. Alexander, where the defendant was convicted of sending obscene text messages. However, the conviction was overturned on appeal to the PA Superior Court. The trial court, as summarized in the appeal

reasoned that text messages may constitute obscene “material” because the statutory definition does not “expressly exclude” them, and the General Assembly must have intended for them to fall within the ambit of the obscenity statute.

and

because the messages appealed to the prurient interest, described patently offensive sexual conduct, and lacked any social value, Alexander’s messages were “obscene” as defined in Section 5903(b)

Defendant argues (and the appeals court agrees) that

the statute does not make it a crime to send sexually explicit text messages to a consenting adult

because the law

only criminalizes the dissemination of obscene “material”: No person, knowing the obscene character of the materials or performances involved, shall: . . . . design, copy, draw, photograph, print, utter, publish or in any manner manufacture or prepare any obscene materials

(emphasis in appellate ruling)

and 18 Pa.C.S. § 5903(a)(3)(i) states that

Obscene “material” is defined for the purposes of that subsection as: Any literature, including any book, magazine, pamphlet, newspaper, storypaper, bumper sticker, comic book or writing; any figure, visual representation, or image, including any drawing, photograph, picture, videotape or motion picture.

The conviction was overturned because the texts were not "material": as the appellate court reasoned,

even assuming that Alexander’s texts were obscene under the Miller test, private and consensual text messages between two adults are not “material” within the meaning of subsection 5903(b). For the purposes of the statute, “obscene material” unambiguously refers to content made for public dissemination.

This "necessarily excludes private speech exchanged via text messages by two consenting adults". The ruling does not consider whether a message disseminated to three or four adults would constitute "public dissemination".

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  • Whether a group is the public has nothing to do with its size. For example, members of the US Armed Forces are a very numerous group but they are not “the public”. Conversely, display in a very small space to which only half a dozen people can fit might be public display if anyone is free to access it.
    – Dale M
    Dec 19, 2022 at 23:51

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