Boundaries of Free Expression III (Obscenity II and Violence/Cruelty) Lecture 26 Chapter 7 Boundaries of Free Expression III (Obscenity II and Violence/Cruelty)

This Lecture Finish Obscenity Pages 348-362 Obscenity II Child Pornography New York v. Ferber (1982) Go over Cruelty/Violence Brown v. Entertainment Merchants Association (2011)

Are Children different? Answer: Yes Protect children from being in underage sexual conduct Prevent them from getting sexually oriented materials What about violent video games?

New York v. Ferber (1982) Background New York (and others) prohibited the distribution of material with minors engaging in sexual conduct they considered it obscene Ferber sells movies to an undercover officer of two underage boys masturbating He was arrested, charged and convicted The New York Court of Appeals overturned, saying the law was overbroad

New York v. Ferber- II Arguments For New York For Ferber This furthers an important state interest (protecting children from sexual abuse) And is the Least Restrictive Means There is no other alternative than to ban all underage sexual materials For Ferber By using “regardless of whether it is obscene” this targets protected speech This is overbroad

New York v. Ferber- III White, J. for a unanimous Court States get greater leeway when it comes to child pornography Prevention of sexual exploitation of the young Distribution of materials related to child sexual abuse Leaves a permanent record of those children’s participation Distribution of the entire network of child pornography must be closed Miller’s SLAP test doesn’t apply here There is an economic motive Any restriction on speech is de minimus Child pornography falls outside of the scope of First Amendment protections

New York v. Ferber- IV More from White, J. Child pornography falls outside of the scope of First Amendment protections Therefore, with child pornography, the Miller test is modified No need to show “prurient interest” of the average person No patently offensiveness requirement Need not consider the material as a whole

New York v. Ferber- V Brennan, J. joined by Marshall, J. concurring in judgment He would find that materials with serious literary, artistic, scientific, or medical value would fall into protections They also note that when suppression of sexually oriented conduct does not involve unconsenting adults or children, he opposes those restrictions

Keeping Children Away from Sexually Oriented Materials Ginsberg v. New York (1968) Court upholds challenge to New York law making it illegal to sell materials with nudity or harmful to minors Well being of children was motivating factor Parents have the responsibility does not apply to adults State interest in well being of youth MPAA Ratings Television and Video Game Ratings Blocking devices

American Booksellers Association, Inc. v. Hudnut (7th. Cir. 1986) Defining pornography as only relating to women violates the First Amendment Violates the Miller test No cert granted

United States v. Stevens (2010) Federal law designed to prohibit commercial depictions of animal cruelty Government said this was unprotected speech Court, by Roberts, C.J. in an 8-1 ruling disagreed Declines to extend to this Worries this may affect hunting Overbreadth problem

Brown v. Entertainment Merchants Association (2011) Background Challenge to a California law banning the sale or rental of violent video games and required they be labeled as such California relied on scientific studies as to their affect on children They stole the Miller test’s SLAPS test

Brown v. Entertainment Merchants Association- II Arguments For Gov. Brown and California Since one can prohibit minors from sexual material, government may do so with violent materials as well The state has an interest in children’s development Violent video game use found to have an affect on aggressive behavior For the Entertainment Merchants Association Stevens applies this is not the same as child pornography Violence is not the same

Brown v. Entertainment Merchants Association- III Scalia, J. for a 7-2 Court States have laws against committing violence referring to Stevens Minors are entitled to some of their own First Amendment protections This does not fall into obscenity Many literary works are violent California must satisfy strict scrutiny to uphold the law They do not, since very few will meet this burden They do not buy the state’s violence arguments They allow the material to go to children if a parent says it is alright No compelling state interest No narrowly tailoring Overbreadth issues

Brown v. Entertainment Merchants Association- IV Alito, J. joined by Roberts, C.J. concurring in judgment Would proceed more cautiously than the majority in striking this down But obscenity different than entertainment No similar history regarding violence than sex Does not treat all minors the same

Brown v. Entertainment Merchants Association- V Dissents Thomas, J. dissenting First Amendment does not apply to minors Breyer, J. dissenting This is only a modest restriction There is a compelling state interest Parental responsibility State’s well being in their children He questions the restrictions on nudity versus violence (think Europe)

Next Lecture We move to a Chapter devoted to issues involving the Internet Pages 363-378 Reno v. ACLU (1997) United States v. Williams (2008) This will finish the First Amendment materials after the next lecture!