F.S. 847.011 - Dissemination of Obscene Materials

The dissemination of obscene material is illegal in Florida. In particular, F.S. 847.011 prohibits “certain acts in connection with obscene, lewd, etc. materials.” 

As Fort Lauderdale criminal defense lawyers, we recognize that “obscene” doesn’t always strictly mean sexually-oriented. However, this charge is most often filed in response to distribution of “lewd” materials. 

Sometimes it is the negotiated/step-down offense to F.S. 827.071, child pornography. Whereas F.S. 847.011 is either a first-degree felony, punishable by up to one year in jail, or a third-degree felony, punishable by up to five years in prison, F.S. 827.071 is a second-degree felony, punishable by up to 15 years in prison.

While it is a lesser offense than child pornography, dissemination of obscene materials is a serious felony charge in its own right. If you or a loved one is facing prosecution for this charge, it is imperative to seek immediate legal counsel from an experienced criminal defense attorney. 

Obscenity has always been a tricky thing to define. Courts across the globe have struggled with where we draw the line between protected free speech and unprotected obscene materials. 

In Florida, F.S. 827.001(12)(a) explains that “obscene” material is that which:

• The average person, when applying contemporary community standards, would find that when taken as a whole appeals to the prurient interest. 
• Depicts or describes sexual conduct in a patently offensive way. 
• Taken as a whole lacks any serious value in terms of art, literature, science, or politics. 

The statute expressly omits a mother breastfeeding of a child to be “obscene” under any circumstance. 

This definition borrows largely from the standards outlined by the U.S. Supreme Court in the 1973 ruling of Miller v. California.

Both definitions are intentionally broad and thus open to a significant degree of interpretation. 

For example, what are “contemporary community standards”? We can generally agree that the contemporary community standards of what was considered obscene in the 1820s no longer applies in the 2020s. But one could reasonably argue in some circumstances that “contemporary community standards” have evolved since even a few years ago. 

Also, what is “serious value”? Few would argue that ancient Greek and Roman marble sculptures of nude models lack “serious artistic value.” But what about photographs of nude models published in magazines or online? The value here is subjective. 

As criminal defense lawyers representing clients charged under F.S. 847.011, broad definitions like these offer room to make compelling arguments against the classification of the material in question as “obscene.” 

F.S. 847.011 prohibits “certain acts” in connection with obscene and lewd materials. It then goes on to describe a large number of acts that are usually summarized as “dissemination,” even though the statute never actually uses that term. 

The dictionary definition of “disseminate” is to “spread something (especially information) widely.” And that’s mostly what the law is referring to, but here is what it actually says is forbidden with respect to obscene materials or materials for obscene use is knowingly: 

• Selling
• Lending
• Giving away
• Distributing
• Transmitting
• Showing 
• Transmuting 
• (Or offering to sell, lend, give away, distribute, transmit, show, transmit)
• Advertising in any manner
• Designing
• Copying
• Drawing
• Photographing
• Posing for
• Writing
• Printing
• Publishing 
• In any manner whatsoever manufacturing or preparing such material
• Causing to be written, printed, published, uttered or advertised 
• Hiring, employing, using or permitting any person to do or assist in doing

Obscene materials can include any obscene:

• Book
• Magazine
• Periodical
• Pamphlet
• Newspaper
• Comic book
• Story paper
• Written or printed story or article
• Writing
• Paper
• Card
• Picture
• Drawing 
• Photograph
• Motion picture film
• Figure
• Image
• Phonograph record
• Wire or tape or other recording
• Any written, printed, or recorded matter of any such character or any article or instrument for obscene use or purporting to be for obscene use or purpose

If you did not disseminate the obscene material, but rather merely had it in your possession, that is a second-degree misdemeanor, punishable by a $500 fine and up to 60 days in jail. 

Knowingly promoting, conducting, performing or participating in an obscene show, exhibition or performance by live persons is a first-degree misdemeanor.

This section does not apply to motion picture films that are permitted under F.S. 847.013.

You may be wondering whether this statute makes all pornographic material illegal. It does not. Pornography, also sometimes referred to as erotic media, is generally protected by the First Amendment - so long as it involves only adults. 

Its public dissemination may be limited. For example, F.S. 847.0134 prohibits adult entertainment establishment displays within 2,500 feet of a school. But it’s generally not a  problem for adults to possess, make, or even distribute pornography – provided only consenting adults are involved. 

Child pornography is not protected by the first amendment. In fact, even if the depictions or materials do not actually involve children (but are rather adults or drawings/dolls/videos that simply look like children), they may still be prohibited under obscenity laws.

In general, so long as pornography does not involve children and is not marketed to them, its publication is generally permitted. However, that does not mean it is uncontrolled. Limits to when and how pornography involving adults can be disseminated may depend on local jurisdictions, but generally decency standards prohibit it on pornography on primary radio and television channels, especially during hours when children may be tuning in.

If you are arrested for violation of F.S. 847.011, there may be a number of viable defenses our criminal trial attorneys can employ. Call our offices immediately – and don’t give any statement to the police without talking to your lawyer first. 

If you have been charged with dissemination of obscene materials in South Florida, contact the Fort Lauderdale Criminal Defense Lawyers at The Ansara Law Firm by calling (954) 761-4011.