LAW - Obscenity
Chapter 9
Obscenity and Indecency
Obscenity - not protected
Offensive and lacking any social value
Pornography - protected
Generic term for sexually explicit material
Indecency - protected
Less graphic and/or erotic than obscenity
Obscenity
1873 - Comstock Act - Suppression of obscene literature through mail
Comstock determined what was obscene.
The Hicklin Rule (pre-1957)
Obscene if it has tendency to deprave and corrupt those whose minds are open to such immoral influences
Roth-Memoirs Test (1957)
1. The dominant theme of the material taken as a whole must appeal to the prurient interest in sex.
2. The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters
3. The material is utterly without redeeming social value
The Miller Test (1973)
An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest
The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law
The work in question lacks serious literary, artistic, political or scientific value (SLAPS test)
Pope v. Illinois (1987)
Changed "average person" to "reasonable person."
OBSCENITY
Contemporary Obscenity Law
An Average Person
The material is to be judged not on personal values
Community Standards
In most jurisdictions, "community standards" are "state standards"
Patent Offensiveness
-Only hard core sexual materials meet this requirement
-Mere nudity is not patently offensive.
Serious Value
-Could someone, not does someone find literary, artistic, political or scientific value in the work?
-Work must be considered as a whole. . .not in part.
Variable Obscenity Statutes (Minors)
1968 Ginzburg v. New York - Supreme Court determined that "girlie" magazines that were legal to sell to adults COULD be restricted from being sold to minors.
Child Pornography
1982 - New York v. Ferber ruled that the Miller test does not apply to child pornography
The material need not appeal to the prurient interest of the average person
It is not required that the sexual conduct portrayed be patently offensive
The material at issue need not be considered as a whole
Child Pornography Prevention Act (1996)
1998 Child Online Protection Act adopted (second Congressional attempt)
2001 Child Internet Protection Act adopted (third Congressional attempt)
2004 Enforcement of Child Online Protection Act blocked by Supreme Court
Pandering
How the work is distributed. If it is displayed to appeal to the prurient interest (emphasizing eroticism rather than literary value) it is called pandering.
Privacy and Possession of Obscenity
Illegal to buy, sell, transport, or order obscenity.
Not illegal to have it in your home for private use.
Due Process and Prior Restraint
Publication and distribution of obscenity can be stopped beforehand or punished afterward.
Govt. has burden of proving obscenity, not creator
Cannot seize materials before they are ruled by judge to be obscene
Indecency
Indecency doesn't necessarily appeal to the prurient interest, so doesn't necessarily pass the Miller test.
Broadcasting
FCC v. Pacifica- (1978) George Carlin's 7 dirty words case. Restriction for profanity relies on children's access to the airwaves. Resulted in anti-indecency policy.
Court said words were not obscene. . but indecent. Pacifica warned but not fined. Appellate court overturned warning, Supreme Court reinstated warning
(5-4). Discussion about difference between obscene and indecent.
2008 - Supreme Court will hear case between Fox TV and FCC. Appellate court sided with Fox who was fined for Cher saying expletive (fuck) during award show. FCC enforcement bureau did not fine station. . .after many complaints, FCC overruled enforcement bureau and said it WAS illegal.
FCC declared ban on "fleeting expletive." Court said FCC deviated from relatively relaxed earlier policy on the one-time use of expletive on TV. Also noted fact that originally said it was not a problem.
Supreme Court grants cert in November, 2008. First case since Carlin on anti-indecency. Potential for self-censorship in fear of $325,000 fines will create burden of policing or monitoring all live broadcasts.
1990s - FCC got on indecency bandwagon. Broadcast bawdy humor and innuendo fined.
Howard Stern fined multiple times. Resulted in indecency guidelines in 2001
Indecent if: sexual or excretory organs or activities described AND is patently offensive to an average viewer or listener (as opposed to "reasonable" as in Miller.)
Basically - indecency is whatever the FCC says is indecent, at any given moment in time.
Supreme Court looking at the Cher indecency incident MAY indicate that there is clarification coming.
2006 Broadcast Decency Enforcement Act
Bush signed Act that raised fines from $32,500. . .to $325,000 per incident.
Tried to set "safe harbor" where kids won't hear. Courts can't agree on time or reason.
Telephone
Can only bar indecent speech as far as children accessing, but not restricting access by adults.
Cable Television
Self-regulating by offering kid friendly (family) packages.
Since cable is "invited into" the home, can be restricted less. Consumers always have the option of not purchasing cable.
Internet
Supreme Court consistently finds that internet requires similar protection to newspapers and print media. Legislators keep trying to regulate it.
CDA - Communications Decency Act. - 1996 Court said too vague too broad to restrict only indecent speech
Women and Violence
Courts have never found violence alone lacks First Amendment protection.
Some claim that violent and degrading portrayals of women should be illegal even if not obscene under typical definition. So far Courts of Appeal have declared such speech as protected.
Video Games
Some laws passed to protected kids from violence in video games. All restrictions found unconstitutional so far. Courts say restricting is job of the parents, not the courts.
V-chip
Method employed to allow parents to control viewing. Very low usage however.
Controlling Non Obscene Sexual Expression
Zoning Laws
Time, place and manner
Content - neutral (protecting community from crime and plunging property value)
Legal Test for Zoning Regulations:
A community cannot, under the guise of zoning, completely bar or even significantly reduce the number of adult bookstores, movie theaters or newsstands
The ordinance must be justified by showing that it furthers a substantial state interest
The ordinance must be narrowly drawn so as not to restrict more speech than is necessary
Postal Regulations
Protects consumers from unwanted sexual materials.
Display Laws
Must cover possibly indecent legal materials so kids can't see, or keep behind counter, or make store adults only.
Motion Pictures
Movie rating system. Self/Industry regulation. G, PG, PG-13, R and NC-17 (used to be X) These are registered trademarks, filmmakers can't use them. Can only be used by Motion Picture Association of America.
Recording Industry
Voluntary labeling. "Parental Advisory"
Video Games, Internet, Mobile Phones- all have voluntary controls
