Miller and Pacifica: From Obscenity to Indecency November 2, 2004 The beginning of the end or the end of the beginning?

The significance of Miller It is the prevailing precedent It marks a real rarity…five judges on the Supreme Court were able to agree on a definition for obscenity It marks a rejection of a national standard for obscenity

The Miller test whether the average person, applying the contemporary standard of the state or local community find the work taken as a whole, appeals whether the work depicts in a patently offensive way sexual conduct specifically defined by the applicable state law whether the work lacks serious literary, artistic, political, or scientific value (SLAPS)

Tuman’s analysis of Miller The approach in Miller reinforces the notion of the marketplace of ideas Thresholds of what is acceptable may be rising, that is, obscenity standards may be more difficult to enforce because of widespread availability

Pacifica and George Carlin We all know the seven dirty words, don’t make me say them! FCC agrees that Carlin’s words do not fit the legal definition of obscenity: no prurient appeal and that it had literary value (Miller) Routine found to be indecent because it depicted “sexual and excretory function in a patently offensive manner.” Pacifica Broadcasting appeals and loses, 5-4

Pacifica’s impact Enforcement is largely dependent on political will rather than legal principle Not really used as basis for enforcement until 1987 “Language or material that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory functions”

Pacifica’s impact So exactly what are the hours of safe harbor? Why is the indecency standard a national one, but even the Supreme Court acknowledges the impossibility and the undesirability of having a national standard for obscenity? What has Bono got to do with this? What is a wardrobe malfunction anyway?