ADV3352 FINAL EXAM Ch 13 16 CHAPTER 13 Regulation of Obscene and Other Erotic Material The Law of Obscenity 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 The Supreme Court articulated in 1973 in Miller v California a test still used by all courts for determining when speech is obscene The regulation of obscenity continues to be a difficult challenge because o The current standard for obscenity the Miller test leaves much flexibility for interpretation The Miller test embraces the use of contemporary community standards that vary from state to state o New technologies have made adult content readily available and accessible pay per view on demand o Feminists claim pornography objectifies women conservatives feel that pornography harms family values o Some people feel that speech considered obscene under Miller deserves First Amendment protection Evidence is inconsistent about whether viewing sexually explicit content really causes harm o There is the question of the inefficient use of scarce government monetary resources in prosecuting obscenity cases today when the content involves adults who freely consented to take part in the activities shown o There is the problem of dealing with sexually explicit content that may not quite rise to the level of obscenity under Miller may not be as bad but that nonetheless is sexual and is broadcast over the nation s television and radio airwaves Common Terms 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 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 this legal landscape Early Obscenity Law 1815 The first obscenity prosecution in the United States when Jesse Sharpless was fined for exhibiting a painting of a man in an imprudent posture with a woman 1821 Peter Holmes was convicted for publishing an erotically enhanced version of John Cleland s Memoirs of a Woman of Pleasure 1873 Comstock Act known as this because of the intense pressure applied on Congress by Anthony Comstock the law declared that all obscene books pamphlets pictures and other materials were non mailable This remains a federal law today Defining Obscenity The Hicklin Rule pre 1950 under this 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 Under this definition if something might influence the mind of a child it was regarded as obscene for everyone Roth Memoirs Test was developed by the Supreme Court and began with the case of Roth v U S in 1957 The test had three parts o First the dominant theme of the material taken as a whole must appeal to prurient interest in sex o Second a court must find that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters o Third before something can be found to be obscene it must be utterly without redeeming social value Contemporary Obscenity Law The Miller Test o Marvin Miller was convicted for violating the California Penal Code for sending five unsolicited brochures to a restaurant in Newport Beach advertising four erotic books and one film containing pictures and drawings of men and women engaging in sexual activities o In Miller for the first time since 1957 the Supreme Court reached agreement on the definition of obscenity if the following standards are met An average person applying contemporary local community standards finds that the work taken as a whole appeals to prurient interest The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law The work in question lacks serious literary artistic political or scientific value The Miller Test Breakdown o An Average Person o Community Standards The Supreme Court expects the trier of fact to rely on knowledge of the standards of the residents of the community to decide whether the work appeals to a prurient interest The juror is not supposed to use his or her own standards in this decision The court expects the standards of an average person to be applied in making this critical determination Prurient interest had been defined by courts to mean a shameful or morbid interest in nudity sex or excretion First in determining if material appeals to a prurient interest the work must be taken as a whole a single scene of a DVD cannot be considered in isolation Second the definition of prurient interest has nothing to do with violence Thus obscenity law deals only with sexually oriented content not violent images In most jurisdictions the term local standards has been translated to mean state standards All communities within the same state share the same standards The question of applicable community standards becomes an important factor in cases that involve the shipment of erotic material over long distances within the U S and in cases involving the importation of sexually explicit material from outside the U S In prosecutions initiated by the U S Postal Service the government is free to choose the venue in which to try the case This might be the city from which the material was sent the city in which it was received or any city through which the material passed during its transit This practice is called venue shopping or selecting a site where conviction is most easily obtained When imported erotic material is seized the standards of the state in which the material was seized are applied at trial The growth of the Internet has generated numerous difficulties in the application of local or even state standards The courts are permitting the government to
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