There is one genre of sexually oriented material which is almost universally sold under-the-counter in the United States: wholly photographic reproductions of actual sexual intercourse graphically depicting vaginal and/or oral penetration. It can be argued that because of the confusion about the meaning of the term, which stems primarily from an undefined legal concept, it would be well to avoid the use of the term altogether. This is, in effect, the definition of hard-core applied in the marketplace. In this Report, the term is used as a synonym for "under-the-counter" or covertly sold materials. Some judges have employed the term "hard-core pornography" as a synonym for "material which can be legally suppressed". This, of course, is not a legal definition. The 1970 report of the President's Commission on Obscenity and Pornography said: Īilers dealing in sexually oriented materials define "hard-core pornography" as "photographic depictions of actual sexual intercourse with camera focus on the genitals and no accompanying text to provide a legal defense". The category of "borderline obscenity" thus became obsolete. Ohio and other cases, the United States Supreme Court ruled that only "hardcore" pornography could be prohibited by obscenity laws, with the rest protected by the First Amendment. But I know it when I see it, and the motion picture involved in this case is not that. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. And that is all." Most famously, in Jacobellis v. Eberhard and Phyllis Kronhausen in 1959 distinguished "erotic realism" from "pornography" in the latter "the main purpose is to stimulate erotic response in the reader. magazines, cartoons, nudist publications, etc." and "hard core pornography, which no one would suggest had literary merit".
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United States (1957) the government brief distinguished three classes of sexual material: "novels of apparently serious literary intent" "borderline entertainment. "Borderline pornography" appealed to sexual prurience, but had positive qualities, such as literary or artistic merit, and so was arguably permitted by obscenity laws "hardcore pornography" lacked such merits and was definitely prohibited. A distinction between "hardcore pornography" and "borderline pornography" (or "borderline obscenity") was made in the 1950s and 1960s by American jurists discussing obscenity laws.