Mass Media Law FinalCHAPTER 13Key terms: Obscenity – A narrow class of material defined by the Supreme Court in the Miller test. Materialthat is obscene is not protected by the First Amendment. Obscene material is sometimes referred to as hard-core pornography.Indecent Material – Material that may be sexually graphic; often referred to as adult material orsexually explicit material. This material is protected under the First Amendment. However, such material may be barred in works available to children (variable obscenity laws) and in over-the-air (as opposed to cable or satellite-generated) radio and television broadcasts.Pornography- This term has no legal significance but is often used by laypeople and politicians to describe anything from real obscenity to material such as a passionate love scene that is simply offensive to the viewer. The overuse (and misuse) of this imprecise term adds more confusion to an already muddled legal landscape.Variable obscenity statutes – Material that may be legally distributed and sold to adults may be banned for distribution or sale to juveniles, usually anyone under the age of 18.Scienter - - Guilty knowledge; whether the defendant was knowledgeable about the contents before it was sold, published, or distributed.Key Cases: Roth v. United States 1957– Declared obscenity is not protected by the First AmendmentMiller v. California – Declared Miller test as a way to determine when speech is obsceneImportant Notes: Today’s challenges for regulating obscenity – 1. Miller test leaves room for interpretation and can vary from state to state2. Technology has made adult content readily available (unfortunate to minors and young children who come across it)3. People believe speech considered obscene under the Miller law deserves First amendment protection4. Inefficient use of government money in prosecuting obscenity cases when the content involved adults who freely consented to take part in activities.5. Some sexually explicit content may not rise to the level of obscenity under the Miller lawEarly Obscenity law -Comstock Act (1873) – declared that all obscene books, pamphlets, pictures, and other materials were non-mailable.Bureau of Customs and U.S. Postal Service banned, burned, and confiscated huge amounts of erotic materials.Defining Obscenity:- Hicklin rule- work is obscene if it has a tendency to deprave and corrupt those who mindsare open to such immoral influences and into whose hands it might fall. (If something might influence the mind of a child, t was regarded as obscene for everyone).o 1957 Supreme court abandoned Hicklin rule - Roth v. US (1957) - Court was forced to adopt a new definition of obscenity- Roth-Memoirs test –1. Dominant theme of material taken as a whole must appeal to prurient interest in sex2. Court must find material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters.3. Before something can be found to be obscene, it must be utterly without redeeming social value Third part was easy to manipulate.Miller v California (1973) – Supreme court redefined obscenityObscene if:1. Average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest.2. The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law3. The work in question lacks serious literary, artistic, political, or scientific valueGuidelines for Miller law: - Average Person - The material is to be “judged neither on the basis of each juror’s personal opinion nor by its effect on a particular sensitive or insensitive person or group.”- Community Standards – o In most jurisdictions, “community standards” are “state standards.”o Becoming more difficult to identify in the era of the Internet, where material can be distributed to and viewed in many communities. - Patent offensiveness – o The Supreme Court ruled that only what it calls hard-core sexual material meets the patently offensive standard.o “Representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” and “representations or descriptions of masturbation, excretory functions, and lewd exhibition of genitals.”- Serious Value - Could someone, not does someone find literary, artistic, political or scientific value in the work?Other standards for the Miller law:- The U.S. Supreme Court has ruled it is constitutional to ban the sale of material to juveniles that is legally distributed to adults. - Laws restricting access by juveniles to indecent material on the Internet have been largely unsuccessful as courts have ruled they also limit legal access by adults to this material.Child Pornography:- The production, distribution and possession of child pornography is not protected by the First Amendment. - Images of minors engaged in sexually explicit conduct do not need to rise to the level of obscenity under Miller in order for them to fall outside of the scope of First Amendment protection.- Child Pornography Prevention Act (1996) – barred the sale and distribution of any images that “appear” to depict minors performing sexually explicit acts. - In 2002, the Supreme Court ruled that important segments of this law violated the First Amendment as the CPAA “prohibits speech that records no crime and creates no victims in its production.”Children as child pornographers and sexting:- When minors create their own sexual content and then post the images on online social networks or trade them via cell phones (“sexting”), they are not exempt from child pornography statutes. - New legislation reduces sexting committed by minors of a certain age to a misdemeanor offense, rather than a felony, or treats it as a noncriminal offense subject to monetary fines and/or community service. Obscenity and Women:- Feminist scholars assert that sexually explicit content subordinates women to men; objectifies and exploits women as sex objects for men’s pleasure; and leads to violence. - Several communities have attempted to adopt laws regulating indecent materials based onthe argument they were harmful to women; courts have found these ordinances unconstitutional restrictions on access to legal material.Controlling obscenity: Postal Censorship:- U.S. Postal Service – o No government agency is more diligent in policing obscenity in the U.S.
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