## Facts

- The Italian government prosecuted a defendant under **Article 528 of the Italian Penal Code** for possessing a videocassette containing obscene, pornographic images in a commercial setting.
- The defendant kept any obscene videocassettes **separate** from other cassettes in his possession.
- The defendant provided or sold obscene videocassettes **only to individuals who specifically requested** the pornographic cassette, rather than offering it openly to the general public.
- The trial judge (the **Magistrate/Pretore of Macerata**, Civitanova Marche branch) considered how the Constitution protects individual freedom while also recognizing limits tied to **“common decency”** and protection against being confronted with pornography against one’s will.
- The trial judge concluded that Article 528 was constitutionally suspect because, in the judge’s view, it punished pornography-related possession in a manner inconsistent with constitutional liberties.
- The trial court suspended the criminal proceeding and referred a constitutional question to the **Italian Constitutional Court** asking whether Article 528 violated **Articles 2, 3, 13, 21, 25, and 27** of the Italian Constitution.

## Issues

1. Whether **Article 528 of the Italian Penal Code** is unconstitutional under **Articles 2, 3, 13, 21, 25, and 27** of the Italian Constitution when applied to pornography-related possession and commerce.
2. Whether the Constitution permits criminal punishment of pornography-related conduct where the material is **kept separate** and made available **only upon adult request**, rather than thrust into public view.
3. Whether Article 528 can be kept in force through a **constitution-consistent reading** that limits criminal liability to conduct that concretely and seriously offends public decency.

## Decision

- The Constitutional Court **did not strike down** Article 528.
- The Court held that Article 528 remains **constitutionally legitimate**, provided it is read in a **restrictive** way consistent with constitutional guarantees.
- Applying a constitution-consistent interpretation, the Court limited Article 528’s reach to conduct that **actually endangers or injures public decency** in a concrete manner, especially where obscene material enters the public sphere or risks exposure to unwilling viewers.
- The Court indicated that pornography-related conduct occurring in **private or controlled, adult-only settings**—without a real risk of unwanted exposure—falls outside the core justification for criminal punishment tied to public decency.

## Legal Principles

- A penal statute should be preserved when it can be given at least one meaning consistent with the Constitution (the Court’s approach of **preserving the norm through constitution-consistent interpretation**).
- “Public decency” is a constitutionally relevant interest, but it cannot be treated as a tool for imposing a fixed moral code through criminal law; criminal liability must track a **concrete social offense**, not mere disapproval.
- Constitutional protections of personal liberty and freedom of expression limit obscenity enforcement, particularly where adults voluntarily seek the material and it is not placed into general public circulation.
- In obscenity cases, the state’s stronger justification lies in preventing **non-consensual exposure** (and protecting minors), rather than punishing controlled adult access that lacks outward-facing impact.
- Principles tied to legality and punishment (including fair notice and proportionality) support a **narrow construction** of criminal prohibitions affecting expressive material.

## Conclusion

In Constitutional Case No. 368/1992, the Italian Constitutional Court refused to invalidate Article 528 of the Penal Code and instead sustained it through a constitution-consistent, restrictive interpretation: the obscenity offense targets conduct that concretely and seriously offends public decency, especially by placing pornography into public view or exposing unwilling persons, while controlled adult-only access with separation and request-based provision does not supply the same basis for criminal punishment.


Italian Obscenity Case, Constitutional Case No. 368/1992 (1992)