Limits to the Freedom of Speech Sup.. Obscenity Limits to the Freedom of Speech

Primary Questions: 1.) Is obscenity protected under the First Amendment’s freedom of speech clause? 2.) If it is NOT protected, then how do you define what is obscene?

What is Obscenity? Anything that treats sex or nudity… In an offensive or lewd* manner Violates recognized standards of decency Lacks serious literary, artistic, political, or scientific value Gov’t has power to prohibit distribution of obscene materials *offensive in a sexual way

“I know it when I see it.” Justice Potter Stewart

History of Obscenity & the United States Prior to 1957: Hicklin Test Stems from English Common Law Any material that has a tendency to deprave or corrupt a child could be outlawed Too broad Comstock Act (1873) Illegal to mail “obscene, lewd, or lascivious” material through the mail Included birth control & abortion information Up to $2000 fine & 10 years hard labor Used Hicklin Test to uphold law

Determining Obscenity 1957: Roth v. United States Roth convicted of mailing obscene materials containing literary erotica & nude photographs Roth Test introduced as new standard Gov’t can ban material “utterly w/o redeeming social importance” No longer used children as standard, but average person “applying contemporary community standards” Still open to interpretation

Redefining Roth 1966: Memoirs v. Massachusetts MA law allowed Attorney General to initiate legal proceedings against “obscene” book Applied Roth test But books may have social value... SCOTUS redefined Roth test by holding unprotected only that which… Is patently offensive Utterly without redeeming social value

Miller v. California (1973) Marvin Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, 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. Legal Question: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?

Miller test (1973) Would the AVERAGE person applying CURRENT community standards find that the material appeals to an unwholesome or unusual interest in sex? Does the work depict or describe, in a CLEARLY offensive way, sexual conduct specifically outlawed by applicable state law? Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value?

“Community standards”? Because SCOTUS relies on “community standards” to determine obscenity, expression deemed obscene in some communities might be protected in others To determine community standards, lawyers in obscenity cases introduce evidence… Sexually-explicit magazines Pornographic movies # of strip clubs in a particular community

Pornography & the First Amendment Congress enacted law in 1989 to put “dial-a-porn” industry out of business Prohibited commercial transmission of indecent phone messages Intended to protect kids SCOTUS ruled law violated First Amendment “The gov’t may not reduce the adult population to… only what is fit for children.”

Pornography & the First Amendment SCOTUS: Although indecent sexual expression protected, it may be regulated to promote a compelling state interest by the least restrictive means Increased oversight by Federal Communications Commission Making purchases available only by credit card Granting access codes to adult service users

New strategies to deal with obscenity Ban all pornographic works that degrade or depict sexual violence towards women Restrict adult bookstores & movie theaters to special zones or ban them from certain neighborhoods Laws against child pornography

Stone Park, IL Historically, site of many adult entertainment bookstores, strip clubs Local ordinance passed requiring 1,000 foot buffer zone between adult entertainment businesses and schools, parks, churches, residential areas. SCOTUS upheld such zoning ordinances in 1989

Stone Park, IL SCOTUS rationale: Ordinance did not ban free expression of theater owners The regulation served a substantial gov’t interest in preserving the quality of life in community Reasonable method of time, place, and manner 5% of city’s land still available