Obscenity

Defining Obscenity Obscenity = Indecent, Lewd, or Licentious Licentious =Lewd, Lascivious Lascivious =Lewd or Lustful Lewd =Indecent or obscene

Hicklin Test (Regina v. Hicklin) 1868 Victoria R. 1. Tendency of the material is to “deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.” 2. Effect of “isolated passages” on the “most susceptible person.”

Anthony Comstock ( ) was a self-appointed anti-vice crusader from New York, who in the 1870s anti-vice crusader from New York, who in the 1870s managed to shepherd through Congress a stringent managed to shepherd through Congress a stringent anti-obscenity statute. This statute forbade, among other "impurities," the importing or mailing of contraceptives or contraceptive information. In the same era, Comstock-type statutes enacted in many state legislatures forbade the dissemination or, in some cases, even the use of contraceptives. Comstock was so zealous and effective in the enforcement of these laws that by the late 19th century, the subject of contraception had become unmentionable --even in major medical textbooks. anti-obscenity statute. This statute forbade, among other "impurities," the importing or mailing of contraceptives or contraceptive information. In the same era, Comstock-type statutes enacted in many state legislatures forbade the dissemination or, in some cases, even the use of contraceptives. Comstock was so zealous and effective in the enforcement of these laws that by the late 19th century, the subject of contraception had become unmentionable --even in major medical textbooks.

Memoirs of a Woman of Pleasure v. Massachusetts (1966) Supreme Court declares this book not to be obscene Follows on 1933 decision overturning a U.S. Customs official’s seizure of James Joyce’s Follows on 1933 decision overturning a U.S. Customs official’s seizure of James Joyce’s Ulysses

Roth v. U.S. (1957) 1. Obscenity is not protected speech 2. Rejected Hicklin test 3. New standard (Average person using contemporary standards) Miller v. California (1973) Findings of Fact at trial 1. Whether the average person, applying contemporary community standards, would find the work, as a whole, appeals to the prurient interest. 2. Whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by state law. __________________________________ 3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. National standard, Pope v. Illinois, 1987

What does Miller define as sexual conduct? Taken from Jenkins v. Georgia, 1974

Legal Alternatives to Obscenity Prosecutions 1. Discrimination (MacKinnon, Canada) 2. Zoning Laws (New York City) 3. Indecent Conduct 4. Racketeer Influenced Corrupt Organization Law (Racketeering) Fort Wayne Books v. Indiana

Broadcast Indecency 1. “Filthy Words:” Pacifica v. FCC 438 U.S. 726 (1978) 2. The “safe” harbor (or “How to get around Section 326”) Howard Stern KUSC-FM “The Jerker” and KPFK (Pacifica) 3.Current Controversies (2004) J. Jackson Stern Redux (featuring Bubba the Love Sponge)

F.C.C. Actions Full report available at

Other Media 1.Cable Television:Local Control Access Channels Leased Channels 2.Telephone Dial-a-porn: Mechanisms for restricted access (Sable v. F.C.C., 1988) 3.Internet CDA (rejected by court) COPA (rejected by 3 rd Circuit in 2003) CIPA (upheld by SC in 2003, 6-3)