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Sexually Oriented Speech. Chapter 11. “Adult” film industry much bigger than Hollywood. “ Lewd and obscene ” are of “ slight social value ” and not protected by First Amendment. Justice Frank Murphy ( Chaplinsky v. New Hampshire, 1942).

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Sexually oriented speech

Sexually Oriented Speech

Chapter 11

“Adult” film industry much bigger than Hollywood

Lewd and obscene” are of “slight social value” and not protected by First Amendment

Justice Frank Murphy (Chaplinsky v. New Hampshire, 1942)

Regulation of Obscenity

Harry Clordescribes the obscene as making offensively public that which should be kept private.

Regulation of Obscenity

Miller v. California (1973) results from sexually-charged brochures sent in the mail.

Regulation of Obscenity

The miller test
The Millertest

  • Regulations must be highly specific

  • Look at the work as a whole

  • “Community” is not the whole USA

  • Work must appeal to prurient interest

  • Work must be patently offensive

Chief Justice Warren Burger

Regulation of Obscenity

The miller slaps test
The Miller “SLAPS” test

Regulation of Obscenity

  • Serious . . .

    • Literary

    • Artistic

    • Political; or

    • Scientific value

National standard used
National standard used

But state of GA could not forbid Carnal Knowledge

Sexually Oriented Speech

The porn jurors lament
The porn jurors’ lament:

Sexually Oriented Speech

Is the average person in my community a reasonable person?

Regulation of Obscenity

Thematic obscenity
Thematic Obscenity

Regulation of Obscenity

  • Works cannot be found obscene because of their sexually heretic themes

    • Lady Chatterley’s Lover

    • Last Temptation of Christ

    • The Woodsman

Privacy of the home
Privacy of the home

  • Stanley v. Georgia (1969)

  • Privacy doctrine does not extend to:

    • Seeing films at “adults only” theatres

    • Importing obscenity

    • Carrying obscenity across state lines

    • Mailing obscenity

Regulation of Obscenity

Variable obscenity
Variable Obscenity

Regulation of Obscenity

  • Definition relaxed if:

    • Sold to children

    • Aimed at a specialized target audience

  • Pandering

Child pornography
Child Pornography

Regulation of Obscenity

  • Prohibits use of Child Actors, Models

  • Laws can reach distribution/possession also

Goal to prevent child abuse
Goal: to prevent child abuse

Regulation of Obscenity

  • No SLAPS test

  • Need not consider whole work

  • No patent offensiveness requirement

  • No prurient interest requirement

  • Law reaches mere possession

Child pornography further complications
Child Pornography:Further complications

CLICK HERE to see relevant scene from American Beauty

Regulation of Obscenity

  • Clothed models can be prohibited

  • Computer-generated “children” cannot be prohibited

  • What if “child” is NOT a child?

New wrinkle sexting
New wrinkle: Sexting

Sexually Oriented Speech

Sexting laws not designed for “grown ups”

Discussion of Media and Rep. Weiner

Regulation of Obscenity

The feminist response
“The” Feminist Response

Andrea Dworkin& Catherine MacKinnon

Regulation of Obscenity

  • Emphasizes harmful effects on women

    • Degrading depictions

    • Encouraging misogynist views

    • Leading men to act violently?

Hudnut decision
Hudnut decision

Andrea Dworkin& Catherine MacKinnon

Regulation of Obscenity

  • Struck down model “femporn” law

  • Lacked several protections from Miller

  • Punished specific viewpoints


  • Can concentrate or disperse “adult-oriented” businesses

  • Generally upheld if they:

    • Are aimed at “secondary effects”

    • Do not effectively shut down the whole category

    • Are not overly restrictive

Regulation of Obscenity

Public nuisance laws
Public Nuisance Laws

  • Mostly used against places where sexual conduct takes place

  • Truly “expressive” activities might be permitted to go on

  • Can also be used against public display of nudity [e.g., Dallas and 1975 Newsweek cover]

Regulation of Obscenity

Sex toys not yet protected
Sex toys not (yet?) protected

Comment on 2010 Ala. Sup Ct decision

Sexually Oriented Speech

Racketeering statutes
Racketeering Statutes

Regulation of Obscenity

  • Selling obscene works twice in ten years is the trigger for federal RICO

  • Punishments can include:

    • Huge fines, and 20 years in jail

    • Forfeiture of assets, including private property

Government sponsorship
Government Sponsorship

Karen Finley

Regulation of Obscenity

  • Government as speaker can engage in viewpoint discrimination

  • Government as sponsor--NEA v. Finley (1998)

    • OK for government to take into account general standards of “decency”

    • But not to engage in viewpoint discrimination

Chris ofili s elephant dung sculpture
Chris Ofili’s elephant dung sculpture

Federal court prohibited NYC from punishing the Brooklyn Museum

Sexually Oriented Speech

Postal regulations
Postal Regulations

Regulation of Obscenity

  • Goldwater Amendment

    • Homeowner opts out of receiving ANY “sexually oriented” mailings

    • PO notifies companies on its list

  • Pandering Act

    • Homeowner identifies a specific mailing

    • PO notifies that mailer never to send again

Nadine Strossen defends pornography

Regulation of Obscenity