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Government regulation of sexually explicit non-obscene speech

Government regulation of sexually explicit non-obscene speech.

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Government regulation of sexually explicit non-obscene speech

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  1. Government regulation of sexually explicit non-obscene speech • Outside of the context of obscenity – where SCT has announced the Miller & Ginsberg standards for judging whether distribution of obscenity can be punished – and actual child pornography – where SCT has said both distribution and possession can be criminally punished: • What interest does the gov’t have in regulating sexually explicit expression? • We have already seen one case involving this issue – Renton v. Playtime Theatres(p. 113) – SCT upheld zoning regulations pertaining to adult theaters • Controversy re decision – claimed law was content-neutral TPM regulation due to it’s reliance on “secondary effects” rationale • Attempts to regulate sexually explicit speech come up in a variety of contexts

  2. Non-Obscene Sexually Explicit Speech – Nude Dancing • Why are cases like Barnes & Paps A.M. even decided on First Amendment grounds – is nude dancing expressive conduct deserving of First Amendment protection? • Note Dallas v. Stanglin– gathering together for purposes of recreational dancing is NOT protected by the 1st Amendment – does NUDE dancing convey expressive meaning?

  3. Nude Dancing – Barnes v. Glen Theatre • SCT upheld law prohibiting intentional public nudity (defining nudity as showing of genitals (including breasts), pubic areas or buttocks with less than a fully opaque covering) • Plurality applied O’Brien: (w/in power of gov’t, important gov’t interest, unrelated to suppression of free expression, no greater than necessary to meet gov’t interest • Prongs 1 & 2 met: What is the gov’t interest? Protecting morality by banning public nudity – is w/in govt’s power and is important interest • Prong 3 - Is the interest unrelated to suppression of free expression? • Would the law ban nudity in theatrical productions of “Hair”? • If so, is it legitimate? • If not, what problems does the law raise? • Prong 4 - Does the effect that nude dancers use certain covering devices unduly interfere with the “erotic message”?

  4. Nude Dancing – Erie v. Paps A.M. • SCT applied O’Brien & upheld law banning public nudity as applied to business engaging in nude dancing – used different reasoning than Barnes. • SCT – State’s interest in regulating public nudity is unrelated to suppression of free expression – why? • State interest is battling the harmful secondary effects of nude dancing – crime, prostitution, etc. • Can this reasoning be right? • How does a total ban on nudity aim at secondary effects of nude dancing? • What evidentiary support does City supply? • Is SCT’s use of secondary effects doctrine different from Young (cited in Paps) and Renton?

  5. Dial-A-Porn – Sable Communications v. FCC • SCT struck down federal law banning indecent, sexually explicit telephone messages individuals could call using 1-900 numbers. • Majority ruled that (unlike ban on obscene phone calls which was constitutional) ban on indecent calls was overly broad. • If you can ban nude dancing why can’t you ban sexually explicit phone call services? What is the Court’s reasoning as to why the law is unconstitutional?

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