Obscenity, indecency, pornography, and other icky forms of communication

1. 1 Obscenity, indecency, pornography, and other icky forms of communication  October 18, 2006

2. 2 But first, a reminder Your next exam: next Wednesday (10/25) Covered: weeks 3-7 chapters 3-7, 12 associated lectures (9/20 � 10/18) associated cases My plan: e-mail study guide to you (and post to class web site) no later than Friday night

3. 3 Why is obscenity so difficult to regulate? Uncomfortable topic Variations across communities, states Balancing issue: First Amendment (free expression)vs. what???

4. 4 Provide some examples of �speech� ruled not obscene Image of bare buttocks on outdoor movie screen: not obscene �Fuck the draft� on jacket worn to court: not obscene

5. 5 One argument against sexually explicit material It harms women Discriminatory Reinforces stereotypes Encourages rape (or discourages anti-rape attitudes) Degrading Makes degradation, humiliation, and violence acceptable (and profitable) [consider Herbert�s Times editorial]

6. 6 Counter-argument: why censorship of pornography is troubling Censorship Perpetuates belief that sex is bad for people (esp. women) Perpetuates belief that women are basically victims Denies sexual freedom and sexual expression (basic human rights)

7. 7 Notoriously difficult to DEFINE The famous quote from J. Potter Stewart: ��I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.� (in Jacobellis v. Ohio, 1964)

8. 8 Issues posed by terminology The word pornography (from Greek; �harlot writing�) is legally imprecise Covers both protected and unprotected sexual material The word indecency has narrow legal and relatively clear meaning (which we�ll get to) The word obscenity (from Latin; �filth�) has been differently defined over time (as we�ll see)

9. 9 In your own opinion� What compelling interests are served by allowing the production, sale, publicity of sexual materials? What compelling interests are served by restricting such practices?

10. 10 Outline the basic history of obscenity law in US No concerns about regulating sexual expression in 1700s and most of 1800s why not? How did Anthony Comstock change all this (in 1870s)? Convinced YMCA to join his campaign against sexual content in art, newspapers, books, magazines Congress ultimately adopted Comstock Act

11. 11 What did Comstock Act do? Prohibiting mailing �obscene, lewd, or lascivious material� Originally, law stopped mailings about abortion & contraception 3 years later (1876) expanded to cover pornographic materials Is it still in effect today? Yes�but only applies to mailing obscene content

12. 12 What was the Hicklin rule? Based on English case (Regina v. Hicklin, 1868) that defined obscenity: Material that would �deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall� In other words�who???

13. 13 How did the Hicklin rule work? From 1870s to 1933 If even a portion of work was �obscene� (dangerous to children) the work as a whole was obscene But beginning in 1930s (with James Joyce�s novel Ulysses) courts began considering material in its entirety And also considered impact on adults, not only children

14. 14 Bottom line If material is deemed �obscene,� it does not get First Amendment protection But HOW should �obscene� be legally defined?

15. 15 Why was Roth v. United States (1957) so important here? Confirmed that FA does not cover obscenity But rejected Hicklin rule (children) Instead, said material is obscene if Average person (adult) applying contemporary community standards, found that work�as a whole�appealed to prurient interests and that it was utterly without redeeming social importance

16. 16 What happened after Roth? Court refined its definitions But it was very hard for government to convict obscenity So court heard case of Miller v. California in 1973 During which obscenity was legally re-defined yet again! As Kelli will discuss�

17. 17 The Miller test To be ruled obscene by a court Average person applying community standards must find work as a whole appeals to prurient interests AND Work�s depiction/description of sexual conduct is patently offensive AND Work, as a whole, lacks serious literary, artistic, political, or scientific value

18. 18 What are prurient interests? Lustful thoughts Morbid or lascivious longingsBut based on community standards�not national standards How to deal with Internet obscenity??? Consider standards of community where material is received, not produced

19. 19 What might be patently offensive? Examples offered by Miller court Patently offensive representations or descriptions 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 Patent offensiveness to be determined by community

20. 20 What else is required for patent offensiveness? Hard-core sexual content Not just nudity Not partial nudity Also, Miller decision said states must clearly and explicitly spell out which sexual acts are problematic But most legislatures have failed to do so!

21. 21 What about �serious social value�? The earlier Roth decision said if material had any social value, it�s not obscene Miller court said material is obscene if it lacks serious social value Thus, Miller was more restrictive than Roth But did not answer every possible question!

22. 22 What does variable obscenity mean? What�s obscene for one audience (children) might not be obscene for another (adults) So courts CAN restrict children�s access to some materials that adults can see

23. 23 What is child pornography? Film or photography of minors in sexual situations �sexually explicit conduct,� actual or simulated; does not require nudity Why is such material forbidden? To protect minors from being sexually exploited Who forbids such material? Every one of the 50 states

24. 24 What was the Child Pornography Protection Act (1996)? Congressional act to criminalize sending or possessing digital images of children in sexual poses or activities Even if images didn�t show real children! What happened? Supreme Court overturned

25. 25 Is possessing obscene material illegal? Usually not (exception: child pornography) What is illegal, then? Making, distributing, selling, exhibiting obscene material Why isn�t possession illegal? Would be invasion of privacy

26. 26 But why the exception for child porno? Interest in protecting children from exploitation outweighs privacy concerns

27. 27 Enough about obscenity! On to indecency!

28. 28 What is indecency? SCOTUS: �nonconformance with accepted standards of morality� It is NOT simply a synonym for obscenity Significance: material that is patently offensive but does not have prurient appeal might be �indecent� but might not be �obscene�

29. 29 Why do media specifics come into play? �Indecent� materials MAY be acceptable in some media but forbidden in others For example?

30. 30 Media distinctions Indecent speech in print media, movies, recordings, on most cable TV, and on the Internet is usually protected Indecent speech on broadcast TV and radio is usually not protected if aired at certain times of day Why the distinctions??

31. 31 The core of indecency law Distinction between children and adults Distinction between public and private ownership

32. 32 The children issue FA protects indecent material in non-broadcast media because minors can (relatively) easily be prevented from seeing them But broadcast radio and TV are much harder to police They�re pervasive They�re hard to keep away from children

33. 33 The public/private issue Who owns the airwaves?

34. 34 More on cable You subscribe to cable You can install a lockbox Cable doesn�t use public airwaves Still, Congress has repeatedly tried to regulate cable-TV content And SCOTUS has repeatedly overruled!

35. 35 How is broadcast indecency defined? For this, we turn to Hailey And the case of FCC v. Pacifica Foundation

36. 36 Core issues in Pacifica ruling Material was indecent But punishment was not prior restraint Language was patently offensive, but not obscene Concept of �indecent� is intimately linked to concern with protecting children Children could easily hear (and did hear) the Carlin broadcast�and parents could miss the warning

37. 37 Pacifica ctd. Broadcast media are particularly pervasive Confront not only children but also adults in privacy of one�s own home�can�t be easily avoided or ignored Broadcast media are accessible to children (whereas other media aren�t) Must consider context: time of day, program content, etc.

38. 38 Indecency rulings since 2004 Janet Jackson at the Super Bowl: FCC says it violated indecency standards Bono at the Golden Globes: FCC says his outburst �fucking brilliant!� is patently offensive because the word describes sexual activity Clear Channel Communications pays $1.75 million in fines for indecent programming Fox is fined for Married by America

39. 39 So why wasn�t ABC fined for Monday Night Football? FCC said the Nicollette Sheridan and Terrell Owens skit was not patently offensive No sexual or excretory organs shown or described No sexual activities explicitly depicted or described Titillating, but not graphic or explicit

40. 40 How is indecent material protected? By the FCC�s safe harbor policy Allows broadcasters to show indecent material at times kids are less likely to watch Generally, 10p-6a

41. 41 How else is indecent speech protected? V-chip Voluntary rating system (TV-MA, e.g.)

42. 42 What about the Internet? What are the 2 major strategies to control Net indecency? Limit the content Courts usually find this unconstitutional Why? Limit kids� access Courts usually more OK with this Why?

43. 43 Among the rejected acts Communications Decency Act (CDA) of 1996 Child Pornography Protection Act (CPPA) of 1996 Child Online Protection Act (COPA) of 1998 SCOTUS has found all of these attempts unconstitutional: they deny adults their First Amendment rights

44. 44 What acts have survived judicial review? Children�s Internet Protection Act (CIPA) of 2000 Stops schools/libraries from getting federal aid if they don�t install �technology protection measures� on computers Protect Act of 2003 Illegal to possess or send images �indistinguishable� from minors in sexual situations

45. 45 Basic logic of Court�s decisions Content-based laws are generally unconstitutional (why?) If writing content-based law, must use least restrictive means of achieving your objective What�s the main objective? How can a law be less restrictive than banning content? Laws designed to protect children must not unconstitutionally harm adults

46. 46 How else does legal system (try to) limit offensive speech? Decency criteria for artistic works that are up for government grants (NEA) Zoning restrictions on �adult� businesses What is the compelling state interest? Warnings on record labels But these are voluntary Attempted restrictions on dial-a-porn OK to restrict obscenity, not indecency

47. 47 What about media violence? Not as much a concern as sex, apparently Courts generally find that FA protects violent expression�and that video games deserve FA protection as do movies, books, TV shows, etc. Generally unmoved by arguments that violent expression leads to physical harm Ratings on video games�but also voluntary, as on recordings