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

2. 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)

3. 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?

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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)

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