Andrew Thomas Alexander was found guilty after a non-jury trial of one count of obscenity based on sexually explicit text messages he sent to an unidentified recipient.
The trial court “struggled” with the obscenity charge and acknowledged that the definition of obscene material in the statute does not explicitly include sexually explicit text messages exchanged by two adults. Nonetheless, the court found Alexander guilty
As to whether the text messages involved were “obscene material” as required by the statute, the trial court found that text messages may constitute “material” because the statutory definition does not “expressly exclude” text messages in the definition of “material.” The trial court further concluded that because the messages appealed to the prurient interest, described patently offensive sexual conduct, and lacked any social value, they also fit the definition of “obscene” as defined by the statute.
Alexander appealed his conviction, arguing that the evidence of obscenity was legally insufficient, and his text messages were statutorily and constitutionally protected communications. Specifically, he argued that the statute does not make it a crime to send sexually explicit text messages to a consenting adult; rather, the statute only criminalizes the dissemination of obscene “material.”
In addressing the issue of whether the text messages were “obscene,” the Superior Court noted that the statutory definition at issue is based on the definition of obscenity as set forth by the U.S. Supreme Court in Miller v. California. In other words, (1) Would the average person applying contemporary community standards find that the subject matter taken as a whole appeals to the prurient interest? (2) Does the subject matter depict or describe in a patently offensive way, sexual conduct of a type described in [the statute]? and (3) Does the subject matter, taken as a whole, lack serious literary, artistic, political, educational, or scientific value? Additionally, the Superior Court noted that “the government … may not criminalize the mere possession of obscene material involving adults.”
As to whether the text messages were “material” as required by the statute, the Superior Court rejected the trial court’s conclusion. In doing so, the Court noted that “[t]he defining terms for ‘material’ necessarily exclude private speech exchanged via text messages by two consenting adults, even if that speech would qualify as obscene.”
“Here, even assuming that Alexander’s texts were obscene under the Miller test, private and consensual text messages between two adults [were] not ‘material’ within the meaning of [the statute].”
Therefore, although Alexander’s texts may have been lewd messages sent to a presumably consenting adult and would not be considered “literature,” they were not obscene “material” as contemplated by the statute.
COMMONWEALTH V. ANDREW THOMAS ALEXANDER, No. 1487 MDA 2020 (Pa. Super. June 29, 2021).