2. But first, a reminder. Your next exam: next Wednesday (10/25)Covered: weeks 3-7chapters 3-7, 12associated lectures (9/20
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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)
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
First Amendment (free expression) vs.
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
Encourages rape (or discourages anti-rape attitudes)
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
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 longings But 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!
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
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 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
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
Limit kids’ access
Courts usually more OK with this
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