FSU ADV 3352 - Chapter 13: Regulation of Obscene and Other Erotic Material

Unformatted text preview:

Chapter 13: Regulation of Obscene and Other Erotic MaterialTHE LAW OF OBSCENITYEARLY OBSCENITY LAWDEFINING OBSCENITYCONTEMPORARY OBSCENITY LAWCONTROLLING OBSCENITYPOSTAL CENSORSHIPFILM CENSORSHIPREGULATION OF NONOBSCENE EROTIC MATERIALSEXUALLY ORIENTED BUSINESSESATTACKS ON THE ARTS AND POPULAR CULTUREEROTIC MATERIAL IN CYBERSPACEChapter 14: CopyrightImmaterial Property LawRoots of the LawFair UseCopyright Protection and InfringementFreelancing and Copyright & DamagesChapter 15: Regulation of AdvertisingAdvertising and the First AmendmentThe Regulation of AdvertisingFederal Trade CommissionThe Regulatory ProcessSpecial Cases of Deceptive AdvertisingChapter 16: Telecommunications RegulationsA prologue to the pastThe changing philosophy of broadcast regulationBasic Broadcast regulationRegulation of Program contentRegulation of Political ProgramingNews and Public AffairsRegulation of New TechnologyChapter 13: Regulation of Obscene and Other Erotic Material-Sexual speech that meets a three-part test for obscenity falls outside First Amendment protection.THE LAW OF OBSCENITYSexually explicit speech remains a problem today, despite two important facts:1. The nation’s high court made it clear more than 50 years ago in Roth v. United States that a narrow category of sexually explicit speech called “obscenity” is not protected by the First Amendment freedoms of speech and press.2. The Supreme Court articulated in 1973 in Miller v. California a test still used by all courts for determining when speech is obscene.The Miller obscenity test leaves much flexibility for interpretation in its actual application by judges and juries. Also the test embraces the use of contemporary community standards that vary from state to state, leading the anomalous result that any given adult DVD might be protected by the First Amendment in one state but not in another.Technologies like the Web and cell phones, as well as cable and satellite television services such as video-on-demand and pay-per-view movies, have made adult content readily accessible.Obscenity – A narrow class of material defined by the Supreme Court in the Miller test. Material that 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 or sexually 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 termsadds more confusion to an already muddled legal landscape.EARLY OBSCENITY LAW-The Comstock Act is a law that declares all obscene books, pamphlets, pictures, and other materials nonmailable.-The Bureau of Customs and the U.S. Postal Service were the nation’s most vigilant obscenity fighters during the late 19th and first half of the 20th centuries. They banned, burned, and confiscated huge amounts of erotic materials, including religious objects, pieces of art, books, magazines, and a wide array of material on birth control.DEFINING OBSCENITYAmerican courts borrowed a British definition called the Hicklin rule.-A work is obscene if it has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands it might fall.-In 1957, the Supreme Court abandoned this rule, declaring that because of this rule American adults were permitted to read or watch only what was fit for children.-The Roth-Memoirs test has three parts to define or test obscenity:1. The dominant theme of the material is taken as a whole must appeal to prurient interest in sex.2. A court must find that the material is patently offensive because it affronts contemporary community standard 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.CONTEMPORARY OBSCENITY LAW-By 1973, when the case of Miller v. California was decided, a more conservative SupremeCourt had its chance to redefine obscenity. This new test is the one courts must use today.The miller test:-Marvin Miller was convicted of violating the California Penal Code for sending five unsolicited brochures to a restaurant. They advertised erotic books and a film and contained pictures and drawings of men and women engaging in a variety of sexual activities.Material is obscene if the following standards are met:1. An 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 law.3. The work in question lacks serious literary, artistic, political, or scientific value.Variable ObscenityA Supreme Court doctrine that permits states to prohibit the sale, distribution, or exhibition of certain kinds of nonobscene matter to children, so long as these laws do not interfere with the accessibility of this material to adults.-Many states use the phrase “harmful to minors” to describe sexual material that is permissible for adults to purchase but that minors may not buy.Child Pornography-The production, distribution, and possession of child pornography is not protected by the First Amendment.-Federal statutes outlaw images of minors – people under age 18 – engaged in “sexually explicit conduct,” including sexual intercourse, bestiality and masturbation, as well as images depicting a “lascivious exhibition of the genitals or pubic area.”-Child pornography does not need to meet the test of obscenity outlined in the Miller ruling to be an illegal product.-The 1996 Child Pornography Prevention Act (CPPA) defined child pornography to include not only actual images (photos, videotapes, films) of children but also computer-generated images and other pictures that are generated by electronic, mechanical, or other means in which “such visual depiction is, or appears to be, a minor engaging in sexually explicit conduct.” -This was struck down as unconstitutional.-


View Full Document

FSU ADV 3352 - Chapter 13: Regulation of Obscene and Other Erotic Material

Documents in this Course
CHAPTER 4

CHAPTER 4

44 pages

Chapter 1

Chapter 1

20 pages

Chapter 4

Chapter 4

21 pages

Chapter 4

Chapter 4

21 pages

Notes

Notes

16 pages

Notes

Notes

16 pages

Exam 1

Exam 1

34 pages

Load more
Download Chapter 13: Regulation of Obscene and Other Erotic Material
Our administrator received your request to download this document. We will send you the file to your email shortly.
Loading Unlocking...
Login

Join to view Chapter 13: Regulation of Obscene and Other Erotic Material and access 3M+ class-specific study document.

or
We will never post anything without your permission.
Don't have an account?
Sign Up

Join to view Chapter 13: Regulation of Obscene and Other Erotic Material 2 2 and access 3M+ class-specific study document.

or

By creating an account you agree to our Privacy Policy and Terms Of Use

Already a member?