Obscenity and Indecency

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

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.

Roth v. United States (1957) 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.

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.

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).

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. Drafted before an electronic age, many states define “materials” as covering any writing, written matter, picture, pictorial representation, film or motion picture, or sound recording.

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

Federal statutes It is a federal crime to knowingly use the mail to send obscene material, to import it into the U.S., or to transport it between states by any method It is a crime to transmit obscene material by broadcast or by cable TV It is unlawful to make obscene communication by means of the telephone for a commercial purpose

Obscene? Indecent? European Union Official advertisement for European Cinema European Union Official advertisement Carls Jr commercial

Indecent: Definitional problems Indecent: offending against decency; unsuitable Decency: correct, honorable, or modest behavior Special legal meaning: a class of speech that is restricted on the broadcast airwaves, even though is not necessarily obscene and would be legally allowable in other avenues of expression.

Seven Dirty words George Carlin Seven Dirty Words…. George Carlin On1973's Occupation: Foole album Carlin performed a routine titled "Filthy Words." Pacifica station WBAI-FM broadcast the routine uncensored.Occupation: FoolePacificaWBAI-FM Morality in Media organization complained to the FCC that the material was inappropriate for the time of day.

FCC v. Pacifica Foundation, (1978) The FCC upheld the complaint. Pacifica appealed this decision. The U.S. Court of Appeals overturned FCC’s decision. The FCC appealed to the Supreme Court. The Supreme Court ruled in favor of FCC, but did not define the scope of “indecency”

FCC v. Pacifica Foundation, (1978) The Court upheld the FCC action by a vote of 5 to 4 The government has interest in: 1) shielding children from potentially offensive material 2) ensuring that unwanted speech does not enter one's home. The FCC had the authority to prohibit such broadcasts during hours when children were likely to be among the audience It gave the FCC broad leeway to determine what constituted indecency in different contexts.