“The Pick” – Mailing Pornography

After sending out Christmas cards to her friends, family, and colleagues, Elaine discovers that her nipple is exposed in the picture on the front of the card. Has Elaine violated Federal Criminal Law or New York Criminal Law by sending pornography through the mail?

Both New York and Federal Law prohibits the mailing of obscene material. Elaine certainly used the mail to send her Christmas cards, and therefore she could be in big trouble with the law if the photo on the card were considered to be obscene. But is Elaine’s little brown circular protuberance really obscene? After all, we all have them.

- I got them too. - Look at this.

The standard for what is considered obscene material was set down by the Supreme Court in Miller v. California. In that case, the court created a three part test for evaluating whether a photo is obscene and could be legislated to be illegal, or whether it is protected free speech under the First Amendment:

  1. Whether the average person, applying contemporary “community standards”, would find that the work, taken as a whole, appeals to the prurient interest
  2. Whether the work depicts or describes, in an offensive way, sexual conduct as specifically defined by applicable state law and
  3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

With regards to the first element, If Elaine were to be brought up on criminal charges, either New York or Federal, it would be difficult for a prosecutor to argue that her Christmas card photo appealed to the prurient interest. Elaine and Kramer didn’t even notice the nipple, indicating that the average person doesn’t even the think of the photo, as a whole, as prurient. Even Newman, a man who enjoys himself a lot of Elaine, barely has any interest in the nipple upon seeing it.

Furthermore, Elaine’s coworkers make fun of Elaine for the photo, demonstrating that the nipple appeals more to the humorous interest than the prurient one. Although Elaine’s nephew seems to take a keen interest in the photo, little boys should not be considered the “average person.” And while Fred’s (Elaine’s boyfriend) reaction to the photo may seem problematic, it’s important to remember that just because he finds it offensive doesn’t mean that it appeals to the prurient interest. 

Though it remains unlikely, even if Elaine were found to have violated the first prong of the Miller test, she wouldn’t be found to have violated the second prong. New York and Federal law criminalize the exposure of the genitals. Quite simply, a nipple is not a genital. Therefore, Elaine has not violated the second prong of the statute.

In order to violate the third prong, the photo must not have any artistic value. As the court notes, this particular prong can incredibly difficult to define, and is best left to each individual jury to determine. From the information we have in “The Pick,” it certainly seems like Elaine is trying to do something artistic for her Christmas Card, and Kramer, with his photo equipment, could be considered as an artist. Although being considered an artist doesn’t necessarily mean that Kramer’s photo will be considered art, it does lend some credence to the fact that his photos of Elaine do have some artistic merit. On the other hand, he did take those photos of loverboy George.

Nevertheless, the general context here does show that Elaine was trying to do something more artistic and nice for her Christmas cards.

Lastly, even if for some unlikely reason Elaine’s photo were to have found to fulfill every prong of the Miller test, Elaine would still not be found guilty because she did not fulfill the mens rea (intent) requirement of knowing that she was sending obscene photos. Elaine did not bare herself deliberately, and would be found innocent of any criminal charges. 

An additional issue to consider though is whether Elaine’s office workers are liable for revenge porn for putting up the Christmas cards in the office. New York City recently voted to criminalize revenge porn, but it is yet to be seen how courts will interpret the statute. Even if it didn’t apply to her situation, Elaine could still bring a potential tort suit for emotional damage and under various common law principles as well.

All in all, Elaine is not going to be criminally liable under either New York law or Federal law, as it would be hard to prove that the photo violated any of the three prongs of the Miller test for obscenity. Any prosecutor that brought such a charge would merely be exposing the nipple on their own soul. And that is truly obscene.

For I have seen the nipple on your soul!

2 thoughts on ““The Pick” – Mailing Pornography

  1. There is a more fundamental problem with any prosecution of Elaine for revealing the nipple. Female toplessness is not a crime in New York State. People v. Santorelli, 80 N.Y.2d 875. And, as noted in another post, topless dancing is protected expression. Bellanca, 54 N.Y.2d. Display of the nipple and breast likely cannot be obscene in New York. Indeed, the obscenity doctrine is of dubious continued validity in New York in light of Bellanca, People ex. rel. Arcara v. Cloud Books, 68 N.Y.2d 553, and People v. PJ Video. 68 N.Y.2d 296. But, that’s just me.

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