OBSCENITY AND THE LAW CHAPTER 10 Communications Law

Controlling / Regulating obscenity, pornography, indecency FCC regulations of broadcast Local, state, and federal governments’ restrictions of all media

Definitions Obscenity: a class of sexual material so offensive that is deemed by the Supreme Court to have virtually no 1 st Amendment protection Pornography: all material that is sexually explicit and intended primarily for the purpose of sexual arousal Indecency: not necessarily obscene, but deemed inappropriate for the airwaves

The People vs. Larry Flynt

Historical background Under the common law rule that prevailed since the 1868 English case Hicklin v. Regina, any material that tended to "deprave and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis. The Anti-Obscenity Act of 1873 The Comstock Law

Roth v. United States (1957) [decided with with Alberts v. California] Facts of the Case: Roth was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Question: Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment?

Roth v. United States (1957) Conclusion: The Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance."

Roth test to determine obscenity "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process.

The question of community v national standards Jacobellis v. Ohio (1964). The Court ruled that the Constitution requires national standards on obscenity.

Stanley v. Georgia (1969) Facts of the Case Law enforcement officers searched Stanley's home pursuant to an investigation of his alleged bookmaking activities. During the search, the officers found three reels of eight-millimeter film. It was concluded the films were obscene. Stanley tried and convicted under a Georgia law prohibiting the possession of obscene materials. Question Did the Georgia statute infringe upon the freedom of expression protected by the First Amendment?

Stanley v. Georgia (1969) Decision: 9 votes for Stanley, 0 votes against The Court held that the First and Fourteenth Amendments prohibited making private possession of obscene materials a crime. The Court distinguished between the mere private possession of obscene materials and the production and distribution of such materials. The latter, the Court held, could be regulated by the states.

Paris Adult Theatre v. Slaton (1973) Facts of the Case: State officials in Georgia sought to enjoin the showing of allegedly obscene films at the Theatre. The Theatre clearly warned potential viewers of the sexual nature of the films. The Georgia Supreme Court held that the films were "hard core" pornography unprotected by the Constitution. Question: Did the Georgia injunction against the films violate the First Amendment's guarantee of freedom of expression?

Paris Adult Theatre v. Slaton (1973) Conclusion: The Court held that obscene films did not acquire constitutional protection simply because they were exhibited for consenting adults only. The Court found that there were "legitimate state interests at stake in stemming the tide of commercialized obscenity," including the community's quality of life and public safety.

Miller v California (1973) Facts of the Case: Miller was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings. Question: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?

Miller v California (1973) Conclusion: In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United States

The Miller Test (modified Roth) 1. The average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest 2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law 3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Return to the community standard Chief Justice Warren Burger: “It is neither realistic nor constitutionally necessary to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.”

The work, taken as a whole, appeals to the prurient interest Prurient: having or encouraging unhealthy sexual curiosity. The material was intended to lewd, lustful, shameful, or morbid thoughts about sex Normal, healthy sexual desire does not fall into this category BUT: What is lustful and what is healthy and normal?

Patent (obvious) offensiveness Patently offensive representations or depictions of ultimate sexual acts, normal or perverted, actual or simulated Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals

Lack of serious value A national, reasonable-person standard is used (not a community standard).

Pope v. Illinois (1987) Facts of the Case: Two employees of an adult bookstore were charged of the offense of ‘‘obscenity’’ under Illinois law after they sold magazines to police detectives. At their trials, the judges instructed the juries to determine the value of the magazines based on how they thought ‘‘ordinary adults in the whole State of Illinois’’ would view them. The defendants argued Miller’s value question should be judged ‘‘solely on an objective basis,’’ which the trial courts and state appellate courts rejected.

Pope v. Illinois (1987) The Question: The three-part test for judging if sexually explicit material is obscene as enunciated in Miller v. California (1973), required an assessment of ‘‘whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’’ The question is whether judges could instruct juries to use community standards when they decided this ‘‘value question.’’

Pope v. Illinois (1987) The Conclusion: The Supreme Court vacated Pope’s conviction and remanded the case to the state courts for reconsideration. The Court stressed that the majority opinion in Miller was ‘‘careful to point out’’ that the First Amendment protects works of serious value ‘‘regardless of whether the government or a majority of the people approve of the ideas these works represent.’’

Pope v. Illinois (1987) The value of such work, moreover, does not vary from community to community according to whether or to what degree the work wins public acceptance. Justice White concluded that the ‘‘proper inquiry,’’ contrary to the approach taken in Illinois, did not rest on how ‘‘ordinary members’’ of a particular community view the social value of an allegedly obscene work; rather it depended on whether a ‘‘reasonable person,’’ using by implication a national standard, found social value in the work taken as a whole

Contemporary Arts Center in Cincinnati, Ohio: Robert Mapplethorpe Show Dennis Barrie and the Contemporary Arts Center were indicted for pandering obscenity hours after the opening of the show that exhibited several portraits, mostly of sadomasochistic acts. Mr. Barrie and the arts center he directed were acquitted in a much- publicized trial that lasted six months. Protesters outside the Contemporary Arts Center

Pornography and Minors The Supreme Court generally agreed that “the need to control child pornography was so “compelling” that the states were free to enact laws that might be unconstitutional under other circumstances.” Osborne v. Ohio (1990) Also New York v. Ferber (1982) The PROTECT Act of 2003 Upheld in U.S. v. Williams (2008)

Local, State, and Federal Obscenity Laws All states have laws governing the distribution of obscene materials. Generally, these statutes prohibit the sale, lending, renting, giving, publication, exhibition or other dissemination of materials, with general knowledge of their obscene character and content.

Municipal Laws / Regulations Nuisance Laws: declaring an adult-oriented business a public nuisance Women’s Rights and Pornography: declaring that pornography violates the civil rights of women Zoning Full Exclusion