1. Boundaries of Free Expression II (Obscenity I)
Lecture 25 Chapter 7
Boundaries of Free Expression II
(Obscenity I)

2. This Lecture More Boundaries of Free Expression Pages 335-348
Obscenity I
Roth v. United States (1957)
Miller v. California (1973)

3. What is Obscenity?

4. Regina v. Hicklin (Britain-1868)
It would seem that that standards on what is obscene may have changed over time
And some view things differently than others
Different communities see things differently
Regina v. Hicklin (1868)
A British case
Tendency of the matter charges as obscenity 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
Not considered as a whole
Not directed to social value or worth
Applies more to children getting a hold of it
The Supreme Court used the Hicklin Test in Ex parte Jackson (1878)

5. Butler v. Michigan (1957) Butler v. Michigan (1957)
Court appears to back away from the Hicklin test
“Burn the house to roast the pig”
Criminalized material for all when the intended to keep it away from were children

6. Roth v. United States (1957) Background
Roth was a NYC businessman who sold books and photos depicting persons in the nude
Congress had banned "obscene, lewd, lascivious or filthy" materials through the mail
He was convicted under this and sentenced to five years in person and a $5,000 fine

7. Roth v. United States- II
Arguments
For Roth
Framers did not carve out an obscenity exception
Does not fit the clear and present danger test
The law is vague and does not put one on notice as to whether they may be violating it
For the United States
First Amendment is not absolute a balancing test with society’s better interests
Obscenity has little redeeming social value
Protection of public morals is a justifying reason to restrict this speech

8. Roth v. United States- III
Brennan, J. for a 6-3 majority
Obscenity not protected under the First Amendment
First Amendment not designed to protect every utterance
Look at state constitutions and state laws prior to the Bill of Rights
“Appealing to the prurient interests”
Sex and obscenity not synonymous
Without redeeming social value
Court abandons the Hicklin test
May punish some protected speech

9. Roth v. United States- IV
More from Brennan, J.
The new test
Must look at the work as a whole (this is new)
Determine its impact on the average member of the community (replaces child)
Does it offend present day standards of the community? (contemporary)
Appealing to the prurient interest (applies it to sexual materials)
The statute in question did not offend the First Amendment
Conviction is upheld

10. Roth v. United States- V Warren, C.J. concurring in judgment
Would limit the decision to the individual case’s facts
Standards seem to always be changing
Look to the conduct of the defendant, not the materials

11. Roth v. United States- VI
Harlan, J. dissenting (in Roth) and concurring (in Alberts)
He concurred in Alberts because he saw states having more authority
Remember the federal statute involved the mail
He sees defining obscenity as one that may change case by case
“The intractable obscenity problem”
Douglas, J. joined by Black, J. dissenting
Goes back to preferred freedom status of speech
First Amendment protects obscenity
Absolutist position of them

12. Jacobellis v. Ohio (1964) Jacobellis v. Ohio (1964)
Many wanted to replace Roth, but finding a new test was difficult
Getting five votes for a new standard
This case is about the showing of the movie Les Amants
It involved a nude love scene
Brennan, J. in a plurality opinion
Contemporary community standards of the nation as a whole, not a local one
Added “must be utterly without redeeming social importance”
Stewart, J. concurring
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that

13. Memoirs v. Massachusetts (1966)
Another plurality opinion from Brennan, J. (vote was 6-3 to reverse)
Changes the “utterly without redeeming social importance”
To “modicum of social value” to not be obscene
Most obscenity convictions under this new standard were reversed
This led to more sexually explicit materials
Movies, movie theaters, books, magazines
This prompted a political backlash by conservatives and a crackdown under the Reagan Administration

14. Miller v. California (1973) Background
Miller was owned a business that sold adult books and movies
He sent out a mass mailer with explicit sexual depictions on the handbill
It went to many that did not want it someone complained and he was arrested
This was part of a group of cases decided together
Chance to replace Roth

15. Miller v. California- II
Arguments
For Miller
The state used the statewide decency standard, not nationwide (case in Orange County)
The handbills were not utterly without redeeming social value
For California
A statewide standard is proper because of local concerns
The statewide standard not much different than the national one
This involves hard core pornography

16. Miller v. California- III
Burger, C.J. for a 5-4 Court
Notice this was the four Nixon appointees plus White, J.
The Court adopts a different three prong test:
1)  Would the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest?
2) Does the work depict or describe, in a patently offensive way, sexual conduct or excretory functions specifically defined by the applicable state law?
3) Does the work, taken as a whole, lack Serious Literary, Artistic, Political, or Scientific value?
The third prong is often known as the SLAPS test

17. Miller v. California- IV
More from Burger, C.J.
He points out the Memoirs test never received more than three votes
So no need to formally overrule the case
Roth is essentially superseded
Examples of what could be prohibited
Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated
Patently offensive representation of masturbation, excretory functions, and lewd exhibitions of the genitals
These would have to meet the SLAPS criteria to be allowed
This seems to limit prosecution to “hard core” pornography

18. Miller v. California- V More from Burger, C.J.
Notice that the Court essentially abandons the nationwide standard
It is up to the trier of fact to determine that
People in Maine and Mississippi may have a widely differing idea of application of this test than those in New York City or Las Vegas
What about San Francisco versus Orange County?
Forum shopping
Some areas would crack down after this decision
Summary
Obscene material is not protected by the First Amendment
Utterly without redeeming social value replaced by SLAPS
Community standards replaces national standards

19. Miller v. California- VI
Douglas, J. dissenting
Criticizes the new standard for obscenity as not being part of any law
Obscenity never mentioned in First Amendment
Thus no constitutional guidance as to what is and isn’t obscene
Different people will have different ways to judge what is and isn’t
A mature society should have no censorship
To ban obscenity, it should be done by constitutional amendment, not by Court decision

20. Miller v. California- VII
Brennan, J. joined by Stewart and Marshall, JJ. dissenting
They believe the statute overbroad, so no further for more consideration
The same trio also dissented in Paris Adult Theater I (decided the same day)
He reiterates the vagueness issue of obscenity laws
Can one ever be put on proper notice of what the law really is?
Side effects of suppressing unprotected speech
He sees a carve out for obscenity to juveniles
Importance of this dissent
He acknowledges a proper definition is not possible
Suppression includes protected speech
No suppression of obscenity except for juveniles

21. Issues of Enforcement Distribution Zoning Racketeering
Block foreign distribution
Or my mail
Zoning
Preventing adult oriented businesses  TPM restrictions
Racketeering
RICO laws
Government Funding
Government can deny funding to things it sees as obscene

22. Next 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)