Obscenity and Pornography • Definitions • Relevant legal standards • Current applications • When can the government restrict access to non-obscene speech? • How is pornography regulated on-line?
Defining Obscenity • Obscene -- 1: disgusting to the senses; 2: abhorrent to morality or virtue; synonym: repulsive. [Webster’s New Collegiate Dictionary] • As a legal term of art obscenity must deal with sexual content • See Brown v. Entertainment Merchants Ass’n (2011)
Obscenity before the Supreme Court • Hicklin: “Whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences.” • Roth: “Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.”
Miller Test for Obscenity • Whether the average person applying contemporary community standards would find the work taken as a whole, appeals to the prurient interest. • Whether the work describes in a patently offensive way, sexual conduct specifically defined by…state statute. • Whether the work taken as a whole lacks serious literary, artistic, political or scientific value [SLAPS test].
Applying the Miller Standard • What are “contemporary community standards?” • What “audience” determines whether a work appeals to the “prurient interest?” • Webster’s: “1) marked by restless craving; 2) having lascivious thoughts/desires or arousing such thoughts/desires” • See NY Penal Law §235(1)(c)
Obscenity Directed to a “Special Group” • Pornographic material directed to gay men/women • Pornographic material directed to minors • See Ginsberg v. New York (1968). • See NY Penal Law §235(1)(c)
Statutes Defining Obscenity • What is “patently offensive?” • Applicable state law • See NY Penal Law §235(1)(b)
Does a Work Have Value? • Who sets the standard? • Who has the burden of proof? • How do you prove “value?”
Miller Test Applied • Luke Records, Inc. v. Navarro (11th Cir. 1992) • 2 Live Crew -- As Nasty as They Wanna Be • Determining the community standard • Establishing patent offensiveness • Is there artistic and literary value?
Regulation of Pornography • What societal interests are used as the rationale for regulating pornography? • See Ginsberg v. New York (1968) • What test/standard should be applied to determine the constitutionality of such regulations? • See Young v. American Mini Theatres (1976)
Implicated Societal Interests • Aesthetics • Health and safety • Privacy of non-consenting adults • Protection of minors • Women’s rights
Regulating Pornography • Retail sales of books, magazines and videos • Movie theaters • Broadcast pornography • FCC v. Pacifica Foundation (1978) • Sable Communications v. FCC (1989)
Pornography on the Internet • Communication Decency Act of 1996 [CDA] • Reno v. ACLU (1997) • Child Online Protection Act of 1998 [COPA] • Ashcroft v. ACLU (2004) • Requiring filtering software • Children’s Internet Protection Act • U.S. v. American Library Ass’n (2003)
Child Pornography • The use of children in pornography – how does that affect legal analysis? • New York v. Ferber (1982) • Statute made it illegal to film kids under 16 engaging in even non-obscene sexual acts • New York court had declared this to be unconstitutional – illegality based on content where content was protected speech • Supreme Court reversed (9-0) -- why?
Child Pornography, con’t • Child Pornography Prevention Act of 1996 [CPPA] • Ashcroft v. Free Speech Coalition (2002) • Can virtual child pornography be regulated?